Home Loan Warning: What Happens If You Separate or Divorce?

Key Takeaways

• Joint property ownership can become legally complex after separation, especially without a formal co-ownership agreement.
• Your marriage contract directly affects who is liable for the home loan and how the property is divided.
• Selling, buying out, or co-owning post-separation all have legal, financial, and emotional implications.

The Hidden Risks of Joint Property Ownership in a Breakup

Here’s What You Need to Know

‍Buying a home together often symbolises a shared future, but what happens when that future changes? Whether you're married, in a committed relationship, or even co-investing with friends or business partners, jointly owning property brings legal and financial ties that can become knots during separation.

With most home loans stretching over 20 years, it's critical to understand what happens when one party wants out. From liability for the bond to ownership rights, failing to plan ahead can lead to serious financial strain or even legal battles.

Gavin Lomberg, CEO of ooba Home Loans, explains how contracts, legal structures, and personal agreements can drastically change what happens next and why it’s essential to get informed now, not later.

Understanding the Contracts: Marriage Types and Co-Ownership Agreements

1. In Community of Property
   
   • Pros: All assets and debts are shared equally.
   • Cons: Both remain equally liable for the home loan—even if only one keeps the house.
   • Sell or Not? Selling often simplifies division; buy-out possible, but both still responsible for the bond unless officially substituted.
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2. Out of Community of Property (Without Accrual)
   
   • Pros: Each partner keeps what they brought into or earned during the marriage.
   • Cons: If both are on the title deed, both are still liable.
   • Sell or Not? Selling divides equity; otherwise, one can apply for a Substitution of Debtor to take over the loan and title.
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3. Out of Community of Property (With Accrual)
   
   • Pros: Protects prior assets, but shares growth equally during marriage.
   • Cons: Can become complicated in calculating claims during divorce.
   • Sell or Not? Either party may claim 50% of accrued difference. Selling or buy-out both viable depending on agreement and affordability.
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4. Co-Ownership Outside of Marriage (Friends, Family, Business Partners)
   
   • Pros: Flexibility in defining ownership, responsibilities, and exit strategies.
   • Cons: Lack of a legal agreement can lead to disputes or unfair financial burden.
   • Sell or Not? A pre-agreed contract should outline what happens—buy-out clauses, rights to force sale, etc.
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Selling vs. Keeping the Property: Your Options After Separation

Selling the Property

• Pros: Clean financial break; bond settled from proceeds.
• Cons: Market timing may be poor; costs (agent fees, legal costs, CGT) reduce net gains.
• Process: Proceeds used to settle the bond and fees; remaining equity divided per legal agreement.

One Partner Keeps the Property

• Pros: Stability for children, emotional or financial preference.
• Cons: Requires bank approval via Substitution of Debtor; legal fees and bond costs still apply.
• Note: If denied, joint liability continues—affordability and credit health are crucial.

Continued Co-Ownership

• Pros: Possible if both parties agree and can co-manage.
• Cons: Risk of future disputes; unclear long-term plans.
• Best for: Amicable separations or when the market isn’t ideal for selling.

Best Advice: Protect Yourself Before and After - Things Go Wrong

1. Always have a formal co-ownership agreement—even with family or friends.
2. Know your marriage contract inside out—it determines who owes what.
3. Don’t assume you can “just take over the bond”—check affordability first.
4. Get legal and financial advice before deciding to sell, stay, or buy out.
5. Use tools like the ooba Bond Indicator to assess your financial readiness.

Final Word from Gavin Lomberg

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“Whether you’re co-purchasing a home, marrying, or facing a separation, early legal and financial planning is your best defence. Uncertainty can cost more than money, it can cost peace of mind.”