OWNING PROPERTY TOGETHER
The law categorises property into real estate, which means land or buildings, and personal property, which covers everything else.
If you buy real estate with your partner, you can both have your names on the property title. You need to decide whether you will own the property as:
- a joint tenancy - this means that you both own the whole property. It can only be sold as a whole and if you separate you'll need to reach agreement about how it is divided. If one of you dies, the survivor inherits the other person's share automatically; OR
- tenancy in common - this means that you own separate shares in the property, which could be 50/50 or an unequal percentage. You can each deal separately with your share by selling it to someone else. If one of you dies, their share is passed on according to their Will or the rules of intestacy (see ‘Death and inheritance').
You can open a joint bank account. This means that the money in it will be jointly owned by you both. If one dies, the other automatically owns all the money in the account. This is helpful if the person dies without a Will.
You can make an agreement that details the financial and property arrangements between you. This should be done when you purchase the property and you should both sign it. It will create certainty for you now and it will be helpful if you separate and there is disagreement about who owns what. Get legal help to write the agreement as a formal legal document called a deed. This means it is a legally binding contract. Although this will cost you money now, it may save you much more money in legal costs if there is a dispute later. The agreement should be reviewed every few years or so and updated to reflect any change to your circumstances.
What to include in a property agreement:
- what each person has contributed financially - including deposit and mortgage arrangements
- who owns any property that you and your partner have bought or received during your relationship
- what each of your financial obligations are under the agreement, and how you will meet these
- what each person's share of the property is
- if the property is sold, how you will divide the proceeds
- how disputes will be resolved if you separate.
Keep detailed records of the financial contributions you make, not only to the purchase, but also to maintenance and repairs. If you want a court to enforce the agreement, it's important to show good faith by doing what you agree to. For example, if you say you will make certain payments in return for a share of property, then you should make those payments.
If one partner already owns property and the other buys in later
Sometimes one partner moves into a house the other person already owns and they decide they want to own the house jointly. Domestic partners who are living together no longer have to pay stamp duty on the transfer of the title from one name into both names. To get the stamp duty exemption, you and your partner must lodge a statutory declaration with the State Revenue Office to prove that you are ‘domestic partners' (see ‘Relationships').
SEPARATION AND DIVISION OF PROPERTY
Who owns what
If you own property together and you have a property agreement, the agreement will make it clear what each person's share in the real estate is. Ownership of personal property or belongings is more difficult to prove. One way is to look at whose name is on the purchase document or receipt. However, this isn't conclusive as it may have been a joint purchase. If you're having trouble sorting out who gets what, make a list of your personal property, then talk about what each person gets.
If you can't agree on what should happen with your shared property (either because you don't have a property agreement or because one person doesn't want to stick to the agreement), you will need to negotiate a settlement. You may need legal help or mediation. You can apply to the Victorian Supreme Court to have your property divided but this involves legal proceedings and can be expensive. Get legal advice before you do so.
Disputes about property between same-sex and heterosexual de facto couples are not covered by theFamily Law Act. This is likely to change for heterosexual de facto couples in late 2006 as the Victorian government is referring its powers to make laws about property matters after relationship breakdown to the Commonwealth. Unfortunately, the Commonwealth government has indicated it will not change the Family Law Act to apply to same-sex couples. Until this changes it is unlikely that same-sex couples will have access to the Family Court for property matters.
Disputes between same-sex couples who have lived together as ‘domestic partners' (see ‘Relationships') and who have split up after 8 November 2001 are covered by Part IX of the Property Law Act 1958 (Vic).
To be covered by Part IX:
- you must have lived together for at least two years, and (usually) must have lived together in Victoria for at least a third of your relationship
- you must apply to the court within two years of the relationship ending, although you may be able to apply outside this time limit on hardship grounds.
There is no standard legal formula for who gets what share. But a court will consider such factors as:
- any financial and non-financial contributions either of you have made to the purchase, care and improvement of the property or to the financial resources of each other
- any contributions you or your partner have made as a homemaker or parent to the welfare of the other partner or the family if there is a child in the household
- any written agreement you have made together.
The Property Law Act doesn't allow courts to consider future needs, only past contributions. The court can override the written agreement if they think it's fair to do so.
Unlike the Family Law Act, which has specific confidentiality provisions, the Property Law Act does not impose restrictions on publication of details of a separation dispute before the Court.
If your relationship ended before 8 November 2001 (or it has ended since then but you had been living together for less than two years) you can still take court action - but you would have to rely on common law principles of equity rather than the Property Law Act. This can be quite slow and expensive and the outcome can be unpredictable.
If you separate after living together and want to transfer the ownership of real estate or a registered vehicle from one domestic partner to the other or from joint names into one name, you do not have to pay stamp duty