Property
If you and your spouse have recently separated and you own real property (aka the family home, investment property or land), it is important to consider the title ownership of the real property. The type of ownership, including whose name is on the title, may impact you after separation. We recommend that you speak with a Family Law Solicitor to ensure that your rights and interests are protected early in the separation process.
Joint Tenants vs Tenants in Common
Joint Tenants and Tenants in Common are two common ways individuals hold an interest in real property. Suppose you and your former spouse own real property as joint tenants. In that case, you will need to consider that if either person passes away before your property settlement is finalised, the surviving spouse will likely automatically inherit the real property. As part of your estate planning post-separation, it is essential to update your Will and consider whether severing joint property ownership is necessary.
Tenants in Common is another form of joint ownership of property. However, each party owns a specific interest in the real property. For example, you and your former spouse may have recorded your names on the title as a 50/50 or 60/40 interest. Again, your interest in real property may impact your estate planning intentions. As Tenants in Common, if either spouse passes away, their share will not automatically be given to the surviving spouse. Instead, it will depend on the individual's Will.
It is common for separating couples to change the ownership of real property on the title from Joint Tenants to Tenants in Common while deciding how they wish to divide the property pool.
What if the property is in my former spouse’s name?
If your spouse solely owns the real property, you may still have an equitable interest in the real property as part of your family law property settlement. You may need to consider lodging a caveat to protect your interest. Caveats can protect a person’s interests in real property. You should consider whether a caveat is necessary and seek urgent legal advice if you are worried that your former spouse may attempt to dispose of the real property, increase the home loan, or alter the property's value without your consent.
It is important to remember that each separating or divorcing couple's circumstances are different, and it is recommended to get expert family law advice specific to your needs and case.
If you and your spouse have separated or you are considering separating and would like to remain amicable, we invite you to reach out to speak with an expert Collaborative Family Law Solicitor. Call us on 1300 414 855 to book a free, no-obligation 15-minute clarity call.