NSW Divorced, Engaged, Property Query

Hi Synthia,

Assuming your husband and his ex wife are registered as joint tenants on the title, if your husband were to die, the property would automatically pass to his ex. On death of one Joint Tenant the surviving Joint Tenant or tenants acquire the whole property automatically by operation of law. Therefore property held in joint tenancy does not form part of the estate of the tenant who dies. So your husband cannot gift the property to you in his will.

You cannot just “take over” the mortgage. Under Australian laws you are not permitted to simply remove or replace someone from a mortgage agreement. In order to remove your husband's ex from the mortgage and property title, your husband will need to buy out your ex-partner’s share of the property, or sell the home and divide the sale proceeds. Alternatively, you will need to refinance the loan to a new loan that is solely in the name of the person who will retain ownership of the property. How seamlessly this can be accomplisehd, will depend on whether your husband and his ex had agreed on what her share of the house if any would be after they separated and divided their other assets. If this was not considered as part of their property settlement and put into writing, you may face additional challenges negotiating what she is entitled to.

I would seek legal advice on this one.