Family Home in One Spouse's Name: What Happens in Divorce?

Does the name on the title matter?

Less than most people think. Section 76 of the Law Reform (Marriage and Divorce) Act 1976 lets the court divide matrimonial property whoever’s name is on the title.

If the home was acquired during the marriage through the efforts of one or both of you, it can be treated as a matrimonial asset. The registered owner does not automatically keep it.

What does the court look at?

• Money each of you put in: the deposit, mortgage payments and renovation costs.
• Indirect contributions: if one of you stayed home to raise the children and run the household, that is recognised as helping the family buy and keep the home.
• The needs of any children.

How much can the non-owner spouse get?

The court has wide discretion over each share. It depends on how long you were married, what each of you contributed and the children’s welfare.

A long marriage with large indirect contributions usually means a bigger share for the non-owner. Even where the home was mainly paid for by one spouse, Section 76 requires the court to consider the other spouse’s work looking after the home and family, so the outcome depends on the facts of the case.

What can the court do with the home?

The court does not have to order an immediate sale. Options include:

• Transfer to one spouse, often the one caring for the children. That spouse may pay the other a lump sum or give up other assets in exchange.
• Deferred sale: the home is sold later, for example once the youngest child reaches a set age.
• Immediate sale: if neither can afford to buy the other out, the home is sold and the money divided as the court orders.

Sometimes one spouse is allowed to stay for a fixed period so the children have stability.

What about the mortgage?

The loan balance reduces the home’s net value, and the court decides who pays the rest.

If the home goes to one spouse, that spouse usually takes over the loan. If it is sold, the loan is paid off first and the rest divided. Tell your bank about the divorce, as a change in ownership may affect the loan.

How can you protect your interest?

If you fear your spouse will sell or transfer the home before the divorce is settled, your lawyer can help you lodge a caveat on the title. A caveat is a notice that stops the property being dealt with without your knowledge or a court order.

Ask for full financial disclosure of all assets and debts. Keep records of what you put into the home: mortgage payments, renovation receipts and household spending.

Looking to engage a divorce lawyer? If the home is not in your name and you are unsure what claim you have, request independent lawyer contact via WhatsApp: Request Lawyer Contact. For general information, use our guides and tools.