Buying a Home Together in NSW: What Couples, Family and Friends Need to Know Before They Sign

Buying a home together can make home ownership possible. With property prices where they are, more people are buying a home together with someone else. That might be a partner before marriage, a sibling, a parent helping a child into their first home, or a close friend.

But the decisions you make before exchange, and often in a hurry, decide what happens if the relationship ends, someone wants to sell, or one of you dies.

This guide explains the key legal steps under NSW law, and where conveyancing, family law and wills all meet.

The Short Answer on Buying A Home Together

When you buy property with someone else in NSW, you need to decide three things before you exchange contracts:

1. How you will hold the property on the title. You can hold it as joint tenants or as tenants in common, and if tenants in common, in what shares.
2. What happens if one of you wants out. This is best covered in a written co-ownership agreement, or for couples, a Binding Financial Agreement.
3. What happens if one of you dies. This depends on how you hold the title and whether you have an up-to-date will.

Getting these right at the start costs far less than sorting out a dispute later.

Step 1: Joint Tenants or Tenants in Common?

When you buy a home together in NSW, the title records how you own it. There are two options.

Joint tenants

• You own the whole property together, with no separate shares.
• If one owner dies, their interest passes automatically to the surviving owner under the “right of survivorship”. This happens regardless of what their will says.
• This is common for married and long-term couples who want the survivor to keep the home.

Tenants in common

• Each owner holds a defined share. Shares can be equal, such as 50/50, or unequal, such as 70/30 to reflect different deposits.
• If one owner dies, their share forms part of their estate and passes under their will. If they have no will, it passes under NSW intestacy rules.
• This is usually more suitable for friends, siblings, parents and children, blended families, and couples contributing very different amounts.

Under the Conveyancing Act 1919 (NSW), where two or more people buy land and the documents don’t say otherwise, they are presumed to hold as tenants in common. In practice, your conveyancer will confirm your choice when preparing the transfer. It should be a deliberate decision, not a box ticked on settlement day.

💡 Tip: Your choice of tenancy affects your estate planning as much as your purchase. Always make the decision with your conveyancer before exchange, and check that your will matches it.

Step 2: Buying With Your Partner Before Marriage

Many couples buy their first home before they marry, or without ever marrying. There are some important points that surprise people.

Family law can override how the title is held

If you are in a de facto relationship, the Family Law Act 1975 (Cth) applies to your property if you separate, in much the same way as it does for married couples.

Generally, a de facto couple can apply for a property settlement if they:

• lived together as a couple for at least two years, or
• have a child together, or
• registered their relationship on the NSW Relationships Register, or
• one partner made substantial contributions and it would be seriously unjust not to make orders.

If you separate, the court does not simply split the home according to the title. It looks at the whole asset pool, both partners’ financial and non-financial contributions, and each partner’s future needs, then decides what is just and equitable.

That means owning 70/30 as tenants in common doesn’t guarantee you will walk away with 70%.

👉 Read more: What Am I Entitled To? A Clear Guide to Property Settlement in Australia

A Binding Financial Agreement can protect contributions

If one partner is putting in a larger deposit, or an inheritance or family money, the most reliable protection is a Binding Financial Agreement (BFA). This is sometimes called a “prenup”.

A BFA can be made before or during a marriage or de facto relationship. It sets out how property will be divided if you separate.

For a BFA to be binding, each partner must receive independent legal advice before signing, and strict formal requirements must be met. A simple written agreement between partners is generally not enough to stop the court making its own orders.

Check your first home buyer eligibility as a couple

For NSW first home buyer duty exemptions and concessions, the rules look at both you and your spouse or de facto partner, even in some cases where they are not on the title. If your partner has owned property before, it can affect your eligibility. Confirm this before exchange.

👉 Read more: Stamp Duty Exemptions for First Home Buyers in NSW

Getting married will change your will

Under the Succession Act 2006 (NSW), marriage revokes an existing will unless the will was made in contemplation of that marriage. If you bought a home together and then married, the will you made at purchase may no longer be valid.

Separation doesn’t revoke a will, and a divorce only revokes gifts to your former spouse. This means the will you made as a couple should be reviewed at every major relationship change.

Step 3: Buying With Family or Friends

When you are looking at buying a home with a sibling, parent or friend, the family law system doesn’t apply to your property. Instead, your protection comes from how you hold the title and what you agree in writing.

Why you need a co-ownership agreement

A co-ownership agreement is a written contract between the buyers that sets the rules from day one. It should cover:

• Contributions: who paid what towards the deposit, stamp duty and legal costs.
• Ongoing costs: how mortgage repayments, council rates, water, insurance, strata levies and repairs will be shared.
• Use of the property: who lives there, whether rent is payable by the occupant, and whether the property can be leased.
• Exit terms: what happens if one owner wants to sell, including how the property is valued, a right for the other owner to buy them out first, and timeframes.
• Missed payments: what happens if one owner can’t or won’t pay their share.
• Death or incapacity: how an owner’s share is dealt with, which ties into their will and power of attorney.
• Disputes: a process such as mediation before anyone goes to court.

Without an agreement, a co-owner who wants to sell can apply to the Supreme Court of NSW under section 66G of the Conveyancing Act 1919 (NSW). The court can appoint trustees to sell the property, even if the other owner doesn’t want to sell. This is expensive and stressful, and an agreement can usually avoid it.

Parents helping a child buy

Many parents help with the deposit, go on the title, or both. Before you do, be clear on the following.

• Is the money a gift or a loan? If it’s a loan, put it in a written loan agreement. This protects the parents, and it can matter if the child later separates from a partner.
• Do you need to be on the title? Being a co-owner means sharing liability and potentially affecting first home buyer concessions. It also means the parent’s share could pass under their estate.
• Are you a guarantor? Guaranteeing a child’s loan is a serious commitment, and you should get independent legal advice first.

💡 Tip: Treat a family purchase like a business arrangement, even when everyone gets along. The best time to agree on the rules is while everyone still agrees.

You share the whole mortgage, not just your share

If you take out a joint home loan, each borrower is usually “jointly and severally” liable. This means the lender can pursue any one of you for the entire debt, not just your share. A co-ownership agreement can deal with how you sort things out between yourselves, but it doesn’t change what you owe the bank.

What Happens If the Relationship Ends?

Married or de facto couples

• Property is divided by agreement, formalised through consent orders or a financial agreement, or by court order under the Family Law Act 1975 (Cth).
• Strict time limits apply. Married couples have 12 months after a divorce becomes final, and de facto couples have two years from separation.
• If one partner keeps the home, it may need to be transferred and refinanced. Transfers made under family law orders may be exempt from NSW transfer duty.

👉 Read more: How to Get a Divorce in Australia: A Step-by-Step Guide

Friends and family co-owners

• You follow the exit terms in your co-ownership agreement.
• Without an agreement, you will need to negotiate, and a co-owner can ultimately apply to the Supreme Court for an order for sale.

What Happens If One of You Dies?

This is where conveyancing and wills meet.

• Joint tenants: the survivor automatically becomes the sole owner, and the will doesn’t affect the home.
• Tenants in common: the deceased owner’s share passes under their will. If you own with a friend or sibling, you could find yourself co-owning with their partner, children or estate.
• No will: the share passes under NSW intestacy rules. A de facto partner of two years or more, or with whom the deceased had a child, can be treated as a spouse under these rules, which may or may not be what the deceased wanted.

Family members may also be able to challenge an estate through a family provision claim. In NSW, the court can sometimes treat property that passes outside a will, including by survivorship, as part of the estate for these claims.

👉 Read more: What Happens If You Die Without a Will in NSW?
👉 Read more: Can Someone Contest Your Will in NSW?

💡 Tip: When you buy with anyone other than a spouse, update your will at the same time. When you buy with a spouse, make sure your wills reflect how you hold the title.

Your Checklist Before You Sign

• ☐ Decide joint tenants or tenants in common, and in what shares, before exchange.
• ☐ Record who contributed what to the deposit and purchase costs.
• ☐ For friends or family: sign a co-ownership agreement.
• ☐ For couples protecting unequal contributions: consider a Binding Financial Agreement.
• ☐ For parents helping: document whether money is a gift or a loan.
• ☐ Check first home buyer eligibility for everyone involved, including partners.
• ☐ Make or update your will, and consider an Enduring Power of Attorney.
• ☐ Have the Contract for Sale reviewed before you sign.

Frequently Asked Questions

Can I change from joint tenants to tenants in common later?
Yes. In NSW, a joint tenancy can be “severed” to become a tenancy in common, including in some cases by one owner acting alone, by registering the appropriate documents with NSW Land Registry Services. Severing can have stamp duty, capital gains tax and estate planning consequences, so get advice first.

If my partner and I own the house 50/50, will we each get half if we separate?
Not necessarily. Under the Family Law Act, the court looks at contributions and future needs across your whole asset pool, not just the title. A Binding Financial Agreement is the main way to set the outcome in advance.

Is a co-ownership agreement legally binding?
A properly drafted co-ownership agreement between friends or family members is an enforceable contract. Between married or de facto partners, however, the Family Law Act can override it, which is why couples generally need a Binding Financial Agreement instead.

Can my co-owner force me to sell?
Yes. Under section 66G of the Conveyancing Act 1919 (NSW), a co-owner can apply to the Supreme Court of NSW to have trustees appointed to sell the property. A co-ownership agreement with a buyout clause can usually prevent this.

What if my co-owner stops paying their share of the mortgage?
The lender can pursue either of you for the full amount. Your co-ownership agreement should set out what happens between the owners, such as recovering the payments from that owner’s share when the property is sold.

Buying A Home Together? Get the Structure Right From Day One

At Sheridan Legal, our conveyancing, family law and wills solicitors work together. That means your purchase, your agreements and your will all line up, rather than being handled in isolation.

We help buyers across Kempsey, South West Rocks and the Mid North Coast with:

• Contract for Sale reviews before exchange
• Advice on joint tenants vs tenants in common
• Co-ownership agreements for family and friends
• Binding Financial Agreements for couples
• Loan agreements for parents helping children buy
• Wills and Enduring Powers of Attorney to match your purchase

📞 Call us on (02) 6562 3300 or book an appointment online at https://www.sheridanlegal.com.au/book-an-appointment/

This article provides general information about NSW law and is not legal advice. Every situation is different. Please speak with a solicitor about your circumstances.