Bankruptcy and Joint Property Ownership in Australia: Understanding Your Rights

This article will explore the intricate relationship between bankruptcy and joint property ownership in Australia. At the Bankruptcy Advisory Centre, we can help you understand your rights and responsibilities when you or a co-owner of the property faces bankruptcy.

It is also important to note that Marriage or common-law partnership itself does not automatically make couples “Joint Tenants” regarding property ownership. Instead, the form of property ownership is determined by how the property is registered and the specific legal agreements made by the couple.

If the property is only registered in one name of the couple, this is known as sole ownership.

In this situation, the other party does not have a legal ownership stake in the property. However, it’s important to note that even if the property is in one party’s name only, the spouse or partner may still have certain legal rights and protections related to the property, especially if the couple is married, in a common law relationship and living together.  

Joint Property Ownership in Australia

Joint property ownership is a common arrangement in Australia where two or more individuals share ownership of a property. There are two primary forms of joint property ownership:

• Joint Tenants: Co-owners have an equal and undivided share of the property in this arrangement. This would be the case with most married or common-law relationship couples who purchase a property together, and both names are on the property title. If one owner passes away, their share automatically passes to the surviving owner(s).
• Tenants in Common: Co-owners in this arrangement may have unequal shares in the property. This could also be the case with married or common-law relationship couples who purchase a property together, and both names are on the property title. The main difference is that if one owner passes away, their share does not automatically transfer to the other co-owners but is typically inherited by their heirs.

Bankruptcy and Joint Property Ownership

When one co-owner faces overwhelming debt and is considering bankruptcy and joint property, it can raise important questions about the impact on joint property ownership. Here are key considerations:

Type of Ownership

The type of joint property ownership matters. In the case of joint tenants, the bankrupt owner’s share typically forms part of their bankruptcy estate and may be subject to sale to repay creditors. In contrast, for tenants in common, only the bankrupt owner’s share is at risk.

Trustee’s Role

A trustee is appointed to manage the bankrupt owner’s financial affairs during bankruptcy. The trustee may assess whether the property should be sold to repay creditors. If it is a joint tenancy, the trustee may consider severing the joint tenancy and converting it into a tenancy in common to sell the bankrupt owner’s share.

At the Bankruptcy Advisory Centre, we can help you make the necessary arrangements to protect your partner and your family home by setting up the tenants in common documentation in preparation for declaring yourself bankrupt.

Co-Owners’ Rights

Co-owners who are not facing bankruptcy typically have certain rights:

• They may have the right of first refusal to purchase the bankrupt owner’s share if it is to be sold.
• They can contest the trustee’s decision to sell the property, but this can be a complex legal process.

Protection of Home

In some cases, if the property is the primary residence of the co-owner who is not bankrupt, protections may be in place to prevent its sale. However, this protection does not extend to investment properties.

Bankruptcy and Joint Property:  The Financial Impact

The financial impact of a co-owner bankruptcy can vary depending on the type of ownership, the property’s value, and the debt the bankrupt co-owner owes. If there is a mortgage on the property, it is considered a secure loan. In this case, the lender has priority for repayment, so it is essential to seek both financial and legal advice to understand how bankruptcy will affect your specific situation. At the Bankruptcy Advisory Centre, we will lay out all the facts and information for you to make an informed decision.

Protecting Your Rights in Joint Property Ownership

To protect your rights and interests in joint property ownership when a co-owner faces bankruptcy, you should discuss the matter thoroughly with the co-owner, usually your spouse and their trustee, and consider the following steps:

• Review Ownership Agreement: If you have a co-ownership agreement in place with your spouse or partner, review it carefully to understand the provisions related to bankruptcy, property sales and what happens in the event of death during the bankruptcy period.
• Negotiate with the Trustee: Engage in discussions with the trustee to explore alternatives to selling the property, such as purchasing the bankrupt co-owner’s share of the property. Our team of experts at the Bankruptcy Advisory Centre can assist you in this area.
• Consider Severing Joint Tenancy: If the property is held as a joint tenancy, discuss with the trustee the possibility of converting it into a tenancy in common, which may protect your share from sale.
• Explore Legal Options: If you believe the trustee’s actions are unfair or not in compliance with the law, consider exploring legal options to contest the sale. At the Bankruptcy Advisory Centre, we understand the human aspect of selling your home, especially if the co-owner is facing financial difficulty, and we will work with you to ensure the best outcome for all parties.

Bankruptcy and joint property ownership in Australia can be complex and legally challenging. Understanding your rights and taking proactive steps to protect your interests is essential when a co-owner faces bankruptcy. Seeking advice and engaging in open communication with all parties involved can help you navigate this difficult situation while safeguarding your property ownership rights.