Can My Girlfriend Take Half My House in Australia?

There is a common misconception that upon separation, your girlfriend is automatically entitled to 50% of your house. In Australia, the division of property is determined based on a number of factors, especially the classification of your relationship and hence, mere cohabitation is not the only consideration. If you were in a legally recognised de facto relationship, your girlfriend may be able to make a claim over your house even if it’s in your name. However, this does not guarantee a 50/50 split. The Court’s goal is to reach a just and equitable outcome, not simply divide everything down the middle.

Simply living together isn’t enough. The Court examines the nature of the relationship, such as whether you shared finances, made joint decisions, or supported each other like a married couple. Each case is assessed on its unique facts.

 To understand how this may affect you, it is important to know the classifications of relationships and the considerations the Court considers.

When can your girlfriend make a claim for Property Settlement?

The type of relationship and its duration can greatly impact property settlement. In Australia, being married, or in a de facto relationship, automatically allows parties to make claims for property settlement cases. For couples in other types of relationships, making a claim is more complex however, there could still be legal avenues to address property and financial matters. 

This could be set out in contracts and agreements between the parties. More information about the types of relationships is listed below. If you are still unsure, do not hesitate to get in contact with a solicitor to understand how the nature of your relationship could impact property settlement.

1. De facto relationship

Under s 4AA of the Family Law Act 1975, a de facto relationship is one where:

• The couple is not legally married;
• They are not related by family; and
• They have a relationship as a couple living together on a genuine domestic basis.

To satisfy this, the Court will have regard to a number of factors including:

• The duration of the relationship;
• The degree of financial dependence and interdependence on each other;
• Ownership and acquisition of their property;
• Care and support of children.

Typically, the couple must have been living together for at least two years unless there is a child or other significant contributions to be considered. However, this does not mean the couple has to have lived together on a full-time basis.

2. Cohabitation relationship

There is no specific timeframe for this type of relationship. A person’s rights may depend on the duration of the relationship and the nature of any formal agreements in place that impact property claims and responsibilities.

3. Just relationships

These are informal relationships with a duration of under 2 years and no children involved. Legal rights from these types of relationships typically arise from specific contributions or agreements made between the couple, rather than simply being the duration of the relationship.

What Happens If Only One Partner Owns the House? 

Even if the property is in only one person’s name, a partner may still have a legal claim to a share of it if the relationship meets the criteria for a de facto relationship. The cCourt may take into account direct and indirect financial contributions (such as mortgage payments, bills), non-financial contributions and whether the other partner contributed to the value of the home.

This means that ownership on paper does not always determine entitlement. The Court will look at the reality of the relationship.

What If We Bought the House Together and Broke Up?

If you and your partner purchased the house together (whether or not both names are on the title), the division of the property will generally consider each person’s financial contributions toward the purchase, mortgage, and upkeep of the home. This includes any deposits, loan repayments, renovations, and even indirect contributions like homemaking and raising a child.

How does this impact property settlement?

The type of relationship impacts the time limits for property settlement. For a de facto couple, one of the parties must apply for settlement within two years from the date of separation. This is compared to married couples who must apply within 12 months of their divorce becoming final. If you attempt to file a claim outside of these time frames, approval is not guaranteed and special permission from the Court will be required.

After a party applies for property settlement, the Court will ensure there is a fair and just division of assets. This does not necessarily mean that each party will receive a 50% split, but assets will be divided fairly in the circumstances, dependant on a range of criteria. This includes the financial and non-financial circumstances of each party, shared life such as homemaking and child-rearing, and future needs, including the age, health and financial resources of the party and their ability to earn income and care for children.

It is also important to understand that the asset pool for property division is inclusive of joint or individually owned assets like bank accounts, investments, superannuation, inheritances and trusts.

If there are no children in the relationship and the duration of the relationship is short, the

Court may decide to leave each party with the assets they brought into the relationship. This is under the assumption that the parties have not come to an agreement themselves.

How can you protect your assets?

It is always a good idea to have a clear and agreed upon plan regarding the division of assets in case of a separation. This can be set out in a Binding Financial Agreement (BFA) or in consent orders.

Binding Financial Agreement (BFA)

This is a legally recognised document that explains how assets and other financial resources will be allocated amongst partners if separation is to occur. These can be made at various stages of the relationship including before or during the relationship,after a relationship breakdown or during and after marriage. Whilst BFAs offer great levels of flexibility, they can be overturned if they are not properly drafted, or if they have been challenged. For a BFA to be legally binding, each party must receive independent legal advice, and the BFA must also be reviewed regularly to account for changes in circumstances to ensure ongoing legal validity.

Consent Orders

Consent orders make agreements legally binding and are an effective way to formalise property settlement after separation. This will be approved by the Family Court and will determine how property, assets, superannuation and liabilities will be divided. Consent orders are beneficial as they carry the same weight as a Court decision and help the parties reach an agreement without going to court. Getting a consent order also saves time, reduces legal costs and minimises conflict. They typically offer higher levels of enforceability in comparison to BFAs.

Conclusion

Your girlfriend believing that she is entitled to 50% of your house is therefore not an easy claim to make. She will have more rights to do so, if your relationship is classified as de facto and specific conditions are met. 

Even if the house is in your name, she may have a claim if she contributed to the relationship in meaningful ways. The law doesn’t automatically divide everything 50/50, it aims to ensure a fair outcome based on many individual factors.

The law surrounding this scenario can be complex, so it will always be beneficial to receive legal advice. Feel free to contact The Norton Law Group in Sydney. Our team of Experienced Family Lawyers who can guide you step-by-step on Separation and Divorce as well as Property Settlement and guide you through every process.