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What’s the difference? Before or after marriage? Married or not? If there a difference? Should there be a difference?
Generally, all of the answers to those questions are no.
If you aren’t married and you are buying property together, then you are probably considered to be parties to a de facto relationship. A de facto relationship is defined under s4AA of the Family Law Act. There is little to no difference between how property settlements occur following the breakdown of a marriage or of a de facto relationship.
Many couples are now opting to buy a property together before marriage, or not to marry at all. This may be for many reasons including they will have a home to move into once they are married, or prior to marriage, as an investment prior to marriage and perhaps using the money that would have otherwise been spent on a wedding towards a home deposit. With property prices in every capital city continuing to rise, it is not a bad idea to be secure in your own home before taking the leap into marriage. This is also a more common occurrence nowadays as more couples live together prior to marriage.
Also what better way to commit to your significant other than by signing a Contract to buy land together and signing up to a joint loan for the next 30 years!
In considering that purchasing a property is one of the most significant acts a person will do in their lives, there is a lot to consider and a lot to protect if the relationship comes to an end.
Couples can always enter into a Financial Agreement to set out the terms of the division of their property upon the breakdown of their relationship. Whilst it may not be a pleasant conversation, it is one that should be had prior to purchasing property with your partner; whether you intend to marry or not. For example, take out what you each put into the property purchase, and divide the balance equally, is one way to propose a division of property. Things get more complicated when family members assist and contribute to the purchase price, or even go guarantor on the loan.
There is nothing inherently more risky when buying prior in a de facto relationship than compared to a married couple, other than the jurisdictional issue of proving a de facto relationship exists, which may be relevant upon the breakdown of the relationship.
I would think the best things to keep in mind are, if you are financially contributing to the purchase price or intend to contribute to mortgage payments to ensure you are on the title deeds. This way you will always have rights under State property law. Further, keep records of your direct financial contributions, particularly, contributions to the deposit, legal and conveyancing costs and payment of stamp duty. These records will assist in reducing issues in dispute in the event the relationship broke down.
If you require advice about your intended purchase of property with your significant other and ways to protect yourself in the event of a breakdown of your relationship, contact one of our family lawyers.
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