Hi there. If you son and his wife separate, they may need to decide how to divide their assets and debts. There are various ways this can be done. Your son and his wife can negotiate an agreement as to how they divide their shared property, without involving the court. If they reach an agreement, they can choose to formalise the agreement by applying for ‘consent orders’ from the Family Court. This simply means that the agreement is legally binding and both parties must follow its terms.

If your son and his wife cannot agree on how to divide their property, they can apply to court for ‘financial orders’. These are court-made orders that determine how the couple’s property is to be divided. There is no set formula used to divide property. A court will make its decision after hearing evidence from both parties as to the property they own and any contributions that have been made to the relationship since it began. When making financial orders, a court will take into account:

(a) direct financial contributions of each party to the marriage (e.g. wages) as well as indirect financial contributions (e.g. inheritance);

(b) non-financial contributions to the marriage (e.g. property maintenance, homemaking, caring for children); and

(c) future financial needs of either spouse based on age, health, financial resources and ability to earn a wage.

It is difficult to determine exactly what a court would order if your son and his wife applied for financial orders to divide their property. Based on the information you provided, it is likely that your son would have a claim to a share of the house if he contributed to the mortgage repayments and spent his own labour and money maintaining and improving the value of the property.