Types of ownership
The main item of property which most people will own will be a house, or home unit or block of land. Ownership of a house and land will normally be in one of the following three forms:
- Sole ownership where the house is owned by either the husband or the wife. During the marriage, the house will be treated as belonging to that person who can mortgage or sell it without the other's permission. On the breakdown of the marriage, the Family Court can make an order which gives the other spouse a share or all of the property even though it is not in their name.
- Joint tenancy is the most common form of ownership for both parties in a marriage or de facto relationship. The home is in the name of both parties. One of them cannot sell the property without the other's permission and on the death of one of them, the ownership automatically passes to the other.
- Tenants in common each own a share in the property. This can be in equal (50/50) or unequal shares. One of them cannot sell the property without the other's permission but ownership does not automatically pass to the other on the death of one of them. Each party has the right to leave their share in a will to whomever they wish.
Right of occupancy
Regardless of whose name the house is in, a married person is entitled to live there unless a court orders the person to leave. This applies to both the husband and wife.
If they are separated the court can order one person to hand over possession to the other, or that one person can continue living there. In deciding who should have the right to stay in the home the court considers the needs of both people, including who is caring for the children. The court can allow one person to stay in the home even if the home is in the other person's name. However, the court can be reluctant to order a person to leave the home unless the needs of the other person clearly outweigh her or his right to occupy.
If a person is threatening to sell, give away or mortgage the home or any other property during the separation and before the final property order, the other person can seek a court order (called an injunction) to stop this. This only applies to a property in the sole name of the person threatening to dispose of it as a home in both names cannot be disposed of unless both agree or the court orders it sold.
Commonly, disputes revolve around the value of the home, and whether it should be sold or whether one party will buy out the other's interests. If there is enough other property, the court may give one person the home, especially if she or he is looking after the children. However, if there is no other way of giving each person their fair share, the court will order the sale of the home.
While a parent may wish to remain in the home, particularly if they consider that the children are attached to the home and wish to spare them disruption, this issue is often determined by economic considerations. Much will depend on how much the bank is willing to lend and whether the spouse buying the home can afford the mortgage. In some cases the court may postpone the sale and let the parent caring for the children stay in the house until the children grow up, if this is not too far off in the future.
Disputes over the value of the home may be resolved by a valuation, or indeed two valuations if necessary. If they differ, an average may be taken. Spouses sometimes disagree over whether particular work that they may have done on the property has added value, and a valuer can appraise this. One common difficulty is that spouses may spend more on their property than it is actually worth, so that they cannot get back money they have put in. There is often no remedy for this and a spouse may have to accept the loss of this money as the price paid for having the home the way they liked it. If there is little or no equity in the home, and no other substantial assets, it may not be possible for spouses to get out what they put in.
There is no stamp duty payable where property is transferred between separated spouses to comply with a court order (by agreement or as directed by the court). It therefore makes good financial sense to obtain a court order. However, if the only property involved is the matrimonial home and/or a motor vehicle, spouses can obtain an exemption from stamp duty payable on the transfer of these assets by lodging a statutory declaration with Revenue SA.
Note that while spouses are still together there is also no stamp duty payable on transfer of an interest in the matrimonial home (for example, one spouse may own the house they live in, and they may agree that the other spouse also be registered on the title as an owner), or the transfer of registration of a motor vehicle between them [Stamp Duties Act 1923 (SA) s71CB]. In order to have the stamp duty waived on the transfer of the shared home or motor vehicle in the above two situations, a special statutory declaration from Revenue SA (Stat Dec 71CB) must be completed.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.