But the house isn't in my name so I can't get it. This is a common misconception about what happens with property when separating. We are commonly asked what happens to assets, or liabilities, that aren't in your name on separation. Many people think that because their name doesn't appear on the asset, or liability, then it doesn't belong to them but this isn't the case. We outline how it all works below.
What If Assets/Liabilities Are Not In My Name When Separating?
The house belongs to him/her because it's not in my name
In other areas of law, if something is in your name then you are legally entitled to it but that's not how it works in family law. When you are in a relationship with someone, marriage or de facto, then the old adage applies what's mine is yours and what's yours is mine. All assets and liabilities are considered joint unless the parties agree otherwise or the court orders it. If a house is in one person's name, it is consider to be an asset of both parties. Similarly, if one party has a person loan in their name only, it is consider a liability to both parties in the relationship.
In other areas of law, if something is in your name then you are legally entitled to it but that's not how it works in family law. When you are in a relationship with someone, marriage or de facto, then the old adage applies what's mine is yours and what's yours is mine. All assets and liabilities are considered joint unless the parties agree otherwise or the court orders it. If a house is in one person's name, it is consider to be an asset of both parties. Similarly, if one party has a person loan in their name only, it is consider a liability to both parties in the relationship.
But what if he/she is trying to sell the house and my name isn't on it?
While in family law all assets and liabilities are considered joint, that might not be the case in other areas of law. If a home is in one person's name only, then they are able to sell it without the other party's consent unless there is a court order in place. If you believe that your former partner is trying to sell a property, you are able to put a caveat over the property to protect your equitable interest in that property and it then cannot be sold until the caveat is lifted.
How can I get access to assets if my name isn't on them?
If you can reach an agreement about the distribution of property then this is the best way to resolve your matter. Once agreed you can draft up the relevant paperwork to get access to property or assets that are not in your name. Check out our article How to get a separation agreement for more information on that.
But if you can't get an agreement, then unfortunately, court is your only option. As mentioned above, in other areas of law, it won't be recognised that you have an interest in those assets so if you were to go to the bank and ask for access to your former partner's bank account because joint funds are in there, but it's not in your name, the bank wouldn't let you access it. You would need to commence an application with the court to seek an order for you to have access to those funds.
It can be incredibly difficult navigating your way through the family law process that is why we offer a free, no obligation consultation with our family lawyers to help you understand what your options and what you can do to finalise your separation.
Contact us for more information or to book a free legal advice session to find out your options.
This information does not constitute legal advice. You should consult with a lawyer to obtain independent legal advice relevant to your situation.
