Hi there. We are not sure what you mean by ‘community property’. We have assumed that you are asking if the property your husband intends to purchase via his trust will form part of the shared or communal property of the marriage.

From a legal perspective, the owner of property is the person whose name is registered on the certificate of title. If only the name of your husband (or the trustee of his trust) is on the certificate of title, then he will be the sole legal owner. This means he can make decisions about the property (e.g. sell, borrow against).

However, there are some circumstances where the law will recognise that other people – such as spouses – also have an interest in the property. This may arise, as you have mentioned, where both spouses are responsible for repaying the loan or mortgage used to purchase the property. In this situation, the law will recognise the contributions of both parties and allow them to claim their proportionate share of the property. This is sometimes referred to as beneficial or equitable ownership (as distinct from ‘legal’ ownership).

If a dispute were to arise regarding the ownership of the property, the person named on the certificate of title will still be in the strongest legal position. However, a court will recognise that the spouse also has a valid interest in the property.

In the event of separation or divorce, if you are unable to agree on how to divide your shared property, then you may need to obtain financial orders from a court dividing your assets and debts. In making its decision, a court will look at the contributions made by both parties during the marriage including:

(a) direct financial contributions of each party (e.g. wages, mortgage repayments) and indirect financial contributions (e.g. inheritance from relatives);
(b) non-financial contributions of each party to the marriage (e.g. caring for children and homemaking); and
(c) the future requirements of each party based on health, age, caring for children and capacity to earn a wage (e.g. spousal maintenance).

Suggested way forward

It is difficult to predict exactly how property will be divided in the event of a separation or divorce. Speaking to a family lawyer will help you understand your legal rights and options. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.