"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.
Assets Not in Your Name After Separation (Australia Guide)
What happens if assets aren't in my name?
How the Court Treats Assets in One Party’s Name
Many people assume that if an asset is in one person’s name, it belongs to them alone. In family law, that is not how it works.
Under the Family Law Act 1975, the Court looks at the entire asset pool, regardless of whose name the asset is in.
This means:
- Property held solely by one party can still be divided
- Assets owned before the relationship may still be considered
- Inheritances and gifts may form part of the pool depending on the circumstances
- Business assets, trusts and superannuation are also considered
The Court focuses on:
- Contributions (financial and non-financial)
- Future needs of each party
- What outcome is just and equitable
In practical terms, even if your name is not on the title, you may still have a legal entitlement to that asset.
Property Settlements Are Not Just About Names on Paper
Ownership on paper is not determinative in family law.
What matters is:
- The history of the relationship
- Contributions made by each party
- What is fair in all the circumstances
Every situation is different, which is why tailored legal advice is critical.
Do I Need a Lawyer for Property Settlement?
You are not legally required to have a lawyer, but in reality most people benefit significantly from legal advice.
Property settlements can involve:
- Complex asset structures such as companies, trusts and inheritances
- Disputes about contributions
- Hidden or undisclosed assets
- Tax implications including CGT and stamp duty
- Superannuation splitting
Without proper advice, you risk:
- Agreeing to an unfair settlement
- Missing assets you are entitled to
- Creating an agreement that is not legally binding
A family lawyer can:
- Identify the full asset pool
- Advise you on your likely entitlement
- Negotiate on your behalf
- Formalise your agreement so it is legally enforceable
Risks of Not Getting Legal Advice
Choosing not to obtain legal advice during a separation can have serious long-term consequences.
Common risks include:
Unfair division of assets
You may receive significantly less than you are entitled to.
Agreements that are not binding
Informal agreements, even written ones, are often not enforceable.
Future disputes
Without proper documentation, your former partner may bring a claim later.
Missed tax and financial consequences
Poorly structured settlements can trigger unnecessary capital gains tax, stamp duty issues and long-term financial disadvantages.
Hidden or undisclosed assets
Without proper disclosure processes, assets may be overlooked.
This information does not constitute legal advice. You should consult with a lawyer to obtain independent legal advice relevant to your situation.
Related Property Settlement Services
If you are dealing with property division, you may also find these helpful:
Speak to a Family Lawyer on the Gold Coast
If you are unsure where you stand, getting early advice can make a significant difference to your outcome.
Speak with an experienced family lawyer at Clarity Legal Group about your property settlement today.
Clear advice
Practical strategy
Focus on resolution, not conflict
FAQs
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.
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 may be 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.
