Safeguarding your property interests – By Briony Robertson
Many clients come to us following the breakdown of a relationship wanting to rely on the manner in which a property is held (that is, Tenants in Common v Joint Proprietors) to dictate the way in which the equity in that property is divided between them and their ex-spouse.
Unfortunately however, whilst in many areas in law the manner in which a property is held would determine an individual’s interest in the property, this is not the case in family law matters. The legislation in relation to both marriages and de facto relationships gives the Court the power to alter the interests of parties to a marriage/relationship in not only jointly owned property, but any property either party owns (individually or with another) or has an interest in.
The recent case of Volpe & Stark [2019] FCCA 692 has reaffirmed the Court’s position in relation to this by making Orders providing for a property owned by the parties as tenants in common in equal shares to be transferred into the Ms Vople’s sole name in circumstances where she had provided the majority of the funds towards the purchase of that property and had met all of the outgoings once they took occupation.
There are ways to safeguard your investment in any jointly owned property purchased early on in a relationship however, and it is important that you obtain appropriate advice before any contracts of sale are executed. For example, we are able to prepare Binding Financial Agreements which provide for properties to be divided in accordance with the manner in which they are held should your relationship come to an end. Furthermore, we are able to draft provisions of those Agreements to ensure that any division of property accurately reflects not only each parties initial contributions, but also contributions during the relationship such as mortgage repayments, rent and the like.
In the event that you are looking at purchasing a property and want to take control over what will happen should things not work out between you and your partner, telephone our office and make an appointment to meet with one of our family law team to find out about your options.
