Hi there. It sounds as though you are having a difficult time. If you and your ex wife are still listed on the Certificate of Title for the property as co-owners, then you both legally own the house. This means that any profit that your ex wife makes from the property, through rent or other means, must be accounted for in proportion to her share of ownership. For example, if she owns 50% of the property, then she is required to give you half of the rental income she receives. This rule stems from the Property Law Act 1974 (Qld).

While this may be the the ‘legal’ answer, you still have a practical problem of enforcing your rights. For this reason, you should consider preparing a binding financial agreement that deals with the ownership of the house and entitlement to its rental income. These agreements are regulated under the Family Law Act 1975 (Cth).

Parties to a divorce may apply to the Court in a property settlement proceeding for an order about how property will be divided. In this case the Court will make an order which it considers to be fair based on the circumstances of each case. There is no single approach to the division of assets made by the Court, and generally speaking, assets are not simply split “50/50”. Instead, the Court considers the contribution made by each party to the joint assets. This will include such things as actual contribution of capital (for example if one party works full time) but also non cash contributions, like the costs of raising a child.

Alternatively, the Family Law Act provides for the possibility of parties to a divorce making their own binding financial agreement. This can deal with the splitting of assets, and other financial issues like rental income from a jointly owned property. These agreements are then made binding through either a consent order by the Court or by the signing of a Binding Financial Agreement. For the creation of a Binding Financial Agreement both parties must receive independent legal advice to ensure each person is being treated fairly and/or knows their rights.