QLD Does Property law or Family Law apply?

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24 August 2019

Situation brother and sister are 50/50 in a property as joint tenants. It has been owned (and rented as investment) for about 10 years.

Brother now deemed to be in a de facto relationship. Brother and de facto have purchased a house together (in another state). Together 4 years approx.

Defacto has had nothing to do with brother and sisters house (money, maintenance, etc., nothing).

If brother dies, will his 50% go to sister automatically because the property is joint tenants? This was(still is) the intent on purchasing together as joint tenants, each would automatically get the others share.

Does the de facto have a claim to the brothers 50% if he dies.

If so how can this be rectified to make sure the brothers 50% goes to the sister (and vice versa if situation was reversed - sister had a de facto)

If the de facto does have a claim on the property, how can it be formalised so the property is only retained between the brother and sister? Can it be gifted, stated in a will,contract, buy the other party out and if bought out what are the tax implications ie. capital gain/stamp duty.

Thanks in advance


Rob Legat - SBPL

LawTap Verified
16 February 2017
Gold Coast, Queensland
I don't do family law, so that aspect of the answer will be missing here.

If the brother dies, the surviving joint tenant (the sister) gains the whole of the property under property law - the brother's interest in the property does not form part of his estate.

Similarly, in bankruptcy, the brother's interest in the property does not form part of his bankruptcy estate and the trustee has no power in respect to it.

If the brother and his de facto split up, I don't know what the outcome would be if there was a property settlement proceeding. It may be considered part of the property pool, but the de facto may have no rights to gain an interest in the property (for example).


24 August 2019
Thank you Rob.

Some aspects of your answer about joint tenants I wasn't aware of, so thank you.

You are right, it is confusing given your assessment re: property law and how family law would play out. Also there are no children from their relationship. The de facto has a grown (adult) child that the father raised, as I understand it.

It is important to have the de facto situation established so the brother and sisters can protect their property.

Hopefully someone familiar with de facto and family law can help clarify.

Thanks again