Can I claim a share of property if my marriage breaks up?

When a married couple decides to separate issues of property division may arise. This commonly occurs, for example, when a couple has purchased property together such as a home.

If this has happened then it is possible to go to the Family Court (or Federal Magistrates’ Court) to determine your share of the property.

As well as real estate it may be possible to claim a share of superannuation, shares, employment entitlements such as long service leave, and business interests.

Does it matter if I am not on the title to the home?

A married person may be able to claim a share of property even if they are not on the title. For example some couples may purchase a home together but for various reasons only one name goes on the title.

Generally whatever is acquired or accumulated during the marriage may be regarded as matrimonial property which should be divided up when the couple separates.

A spouse may have a claim on property even if the other spouse owned it before they were married.

What proportion can I claim?

Claims on matrimonial property are assessed on the basis of contributions to the marriage and the need to take care of the interests of any children of the marriage. This can mean that where one person has the children with them most of the time after separation they may be entitled to a greater share of property, typically 60 – 75%.

Contributions may include non-financial contributions such as raising children and looking after the home. They may also include making improvements to the property, such as doing renovations, maintenance, gardening, or decorating.

Sometimes a person’s extreme conduct during the marriage such as gambling, continual violence or chronic drug or alcohol abuse can be treated as a negative contribution entitling the other person to a greater share taking into account what they have endured.

Do I have to go to the Family Court for a property claim?

While the Family Court of Australia may decide matrimonial property disputes it encourages parties as much as possible to resolve their differences outside the court room. This can involve negotiating between lawyers or attending mediation with a neutral mediator to work out an agreeable property division. Lawyers who work in this area should be aware of various options to avoid a court case.

What is a caveat and do I need one?

When you are not on the title of a property such as the matrimonial home you may consider lodging a caveat to protect your share of the property.

A caveat is a legal warning or notice that can be put on the title to someone’s land telling anyone interested in buying or lending on that property that you are claiming a share of it. This is done to prevent the property being sold without you getting paid out your share.

To do this a caveat form has to be completed and lodged at the Titles Office. A solicitor can do this for you. It is a good idea to get advice from a lawyer about whether to lodge a caveat particularly if you fear the property may be for sale.

While it can be very helpful to file a caveat to protect your share of a property you should see a lawyer before you do this as filing caveats without a proper legal basis could lead to costly legal proceedings being brought against you by the owner of the land.

Are there time limits to bring a claim for matrimonial property division?

For married couples the time limit for filing a matrimonial property claim in the Family Court is one year from the date of divorce. While this is the cut off time for claims you do not have to be divorced to file a property application in the Family Court, which may be done the day after you separate if you wish.

If you believe you have a claim whether inside or outside this one year time limit you should discuss this with a solicitor as soon as possible.