The House is in my Name, But it Belongs to my Parents
Except in limited circumstances, an interest that a party has in a real property that is registered in the name of one spouse or jointly held with another person will be included as an asset of the parties to be divided between them.
In a recent case the court was faced with an application by the husband that the wife was the owner of a property, and therefore it should form part of the pool of assets to be divided between the parties. The wife opposed this claiming that her 82 year old mother was the beneficial owner of the property.
Prior to the husband’s family law Application, the wife had made an application in the State Supreme court to have the title of the property transferred from her name to her mother’s name. The Supreme Court made a declaration that the wife held the property ‘upon trust’ for her mother. That court also ordered that the wife transfer all of her interest in the property to her mother.
Background
The relevant matters taken into account in the matrimonial property settlement proceedings were as follows:
- The wife’s mother had contributed the whole of the purchase price.
- Prior to the purchase of the property, the wife’s mother had previously purchased other properties, all of which were either in the wife’s sole name or the wife’s name appeared on the title along with her parents’ names. Upon the sale of these properties the wife did not receive any funds.
- The wife’s parents paid all of the rates for the property.
- The wife signed a mortgage document naming herself as mortgagor and her parents as mortgagees for the principal sum of $350,000;
- Renovations were carried out to the property. The wife’s mother contended those renovations were paid for by her.
- The husband gave evidence in the family law proceedings that he contributed financially to the renovations, but he contradicted himself in relation to how much he contributed.
Findings
The Trial Judge found:
- The wife’s parents had no intention of giving the wife any beneficial interest in the property at the time of its purchase, nor did the wife have any intention of taking a beneficial interest in it.
- The wife’s mother had made it clear via conversations with the husband and wife that she would retain beneficial ownership of the relevant property; and
- The payment of rates by the wife’s parents and the fact that the wife received no sale proceeds (from previous properties) was consistent with the wife’s claim that her mother intended to retain beneficial ownership of the property.
Decision
The Judge in the family law proceedings ordered that there be a declaration that the wife held the property ‘on trust’ for her mother, so it was not included in the matrimonial property pool to be divided between the husband and the wife.
If you are concerned about what to do in your situation and need trusted, independent legal advice, make an appointment with our family lawyers in Brisbane by calling (07) 3221 4300, and let us answer your questions.
