It is becoming increasingly common that couples receive financial assistance from their parents. This can be through transfer of property, the giving of money or both. This assistance is becoming progressively prevalent due to rising prices within the property market which has meant that many couples are unable to enter the market without assistance from their parents. However, this can cause issues if the couple separates, as there can be a dispute as to whether the money provided was provided by way of a gift or a loan.

In a property settlement, the family law court can treat payments made by a parent to their child in two ways:

  • The court may find that the payment was a gift to the child which is not expected to be repaid.
  • The court may find that the payment is a loan from the parents that is to be repayable in full.

How does the family law court treat gifts?

In general, a court treats gifts from a parent as being for the benefit of their child alone. Because of this, when assessing entitlements, the court will apply such gifts  towards that spouse’s side of the ledger, when determining their entitlement. This would result in that spouse receiving an extra contribution as a result of the gift applied towards the relationship. However, if the intention was that the gift was to be provided to both parties to the relationship then it would be open for a spouse to contend that the gift is to be taken as an equal contribution of both parties.

How does the family law court treat loans?

If the money is determined to be a loan from the parents, the court must then determine whether the loan is legally repayable and in doing so, they must consider whether the loan is likely to be repaid in the foreseeable future. If the loan is unsecured, the court has discretion to either deduct the loan from the pool of assets or not. If the terms of the loan are vague or uncertain, the court is less likely to enforce the loan. Evidence about the loan determines how the loan is treated. If there is any oral or written evidence of the loan, and the parties have complied with the terms of the loan through actions such as making repayments, the court may be likely to uphold the existence of a loan. However, if there is little or no evidence that supports the claim that it was a loan, and there were no repayments made, the court would be less likely to uphold the existence of the loan.

Parents considering lending money to children who are married or are in a de facto relationship

If you are considering lending money to your child who is married or in a de facto relationship, it is important that there is documentation which adequately establishes that the money provided is to be treated as a loan.

The documentation can include:

  • A loan agreement that sets out the terms of the loan which is signed by all the parties involved
  • A mortgage over the property that secures the loan

Further to the documentation, it is important that the parties to the loan comply with its terms and obtain any appropriate legal advice. If, under the loan, repayments are to be made, they must be made or if payment of the loan is reliant on an event or after a particular time period which has passed, then a new loan agreement should be entered into.

Contact Us

If you have separated from your partner and your parents have lent you money and you are not sure whether it will be treated as a gift or a loan in court or you are wishing to lend money to your child who is in a relationship and you would like more information on how we can assist you in your matter contact us on 9963 9800 or by email to law@etheringtons.com.au.