Does putting the family home in the
wife's name protect it from creditors?
A simple asset protection strategy used by many
businesspeople and professionals is to put the family home
into the wife’s name to protect it from creditors and the
Trustee in Bankruptcy.
The effectiveness of this asset protection strategy was
recently tested by the Australian Taxation Office in the
decision of Commissioner of Taxation v Bosanac (No 7)
 FCA 249 (22 March 2021) (McKerracher J).
The facts in Bosanac
- Mr and Ms Bosanac were married on 3 October 1998.
- Mr Bosanac described himself as a ‘self-styled
venture capitalist’. He was a ‘sophisticated businessman
who appreciated the significance of the name in which
real property is held’.
- On 3 May 2006, Ms Bosanac’s offer of $4,500,000 was
accepted to purchase 82 Phillip Street, Dalkeith, in
Perth Western Australia. She paid the deposit of
$250,000 from a joint bank account. The house was
purchased while under construction.
- On 3 November 2006, the purchase was settled and the
title to the property was transferred into the name of
Ms Bosanac as sole registered proprietor. The property
became the matrimonial home of Mr and Ms Bosanac and
their three children.
- The purchase price was fully funded by two new joint
loans from Westpac Bank, one of $3,500,000, the other of
$1,000,000. The loans were secured over the Dalkeith
property, and over other property they owned. The
deposit was refunded out of these loans.
- Mr and Ms Bosanac resided together in the property
until mid-2015, when Mr Bosanac moved out (they had
separated earlier, in about 2013).
- Lurking in the background was the fact that Mr
Bosanac had not lodged tax returns for seven years from
2006 to 2013. After a tax audit, the Commissioner issued
a notice of assessment on 16 June 2015.
- On 12 August 2016, the Federal Court entered
judgment for a tax debt of $9,344,111.89 plus costs
against Mr Bosanac.
Did the presumption of
Ever since Kingdon v Bridges (1688) 23 ER 653, it
has been the law that the “presumption of advancement arises
where a husband makes a purchase in the name of his wife, or
makes a contribution to the purchase price but does not take
legal title that reflects that contribution”.
If the presumption of advancement arises, the asset
purchased in the wife’s name is considered to be a gift by
the husband and the husband has no beneficial interest in
If the presumption of advancement does not arise or is
rebutted, the wife holds part or whole of the asset
purchased in trust for the husband. That is, the husband
retains a beneficial interest under what is known as a
resulting trust to the extent of his contribution.
In this case, the Commissioner was looking to establish
that Mr Bosanac had an equitable interest of a one half
share in the family home so as to recover the tax debt from
The Commissioner argued that the presumption of
advancement did not arise, or that if it arose the
presumption was rebutted and Mr Bosanac retained a
beneficial interest in the property, in these circumstances:
- “the Dalkeith Property was the matrimonial home of
Mr and Ms Bosanac, it being purchased in late 2006 after
which they resided there together for a period of more
than seven years;
- Mr Bosanac’s contribution to the purchase price took
the form of borrowed funds from Westpac and those funds
were borrowed on the condition that Ms Bosanac would
register a mortgage in favour of Westpac over the
Dalkeith Property to secure the loan funds;
- both Mr and Ms Bosanac were jointly and severally
liable to pay the entirety of the funds advanced and it
follows that Mr Bosanac assumed a very substantial
liability in contributing to the purchase without the
benefit of having his name registered as a proprietor on
the title; and
- there is evidence of shared back accounts and some
sharing of other property assets.”
It is important to note that no evidence was presented to
the Court that Mr Bosanac intended to retain an interest in
the home at the time it was purchased or at any time
Nor was there any evidence of intent to defeat creditors.
The Court noted: “No suggestion has been raised that the
Dalkeith Property was registered in the name of Ms Bosanac
with a view to Mr Bosanac avoiding meeting commitments to
creditors with equity in that property.”
The Court rejected the Commissioner’s arguments and
“In considering all of these circumstances both
individually and cumulatively, I do not consider the
evidence adduced is capable of supporting an inference
that Mr Bosanac intended to retain a beneficial interest
in the Dalkeith Property. The ‘presumption’ of
advancement stands unrebutted.
The notion that a husband is to be presumed to gift
property to his wife, while the same will not be
presumed of a wife to husband, between same sex spouses,
or between de facto partners, may grate with modern
ideals and expectations of equality.
But as things currently stand the ‘presumption’ of
advancement remains part of Australian law even for the
matrimonial home. It is not for a judge sitting at first
instance to depart from such long-standing legal
The Court therefore dismissed the Commissioner’s
application for a declaration that: Ms Bosanac held 50 per
cent of her interest in the Dalkeith Property on trust for
Comments and conclusions
The presumption of advancement applies only to assets
transferred to a married woman or a woman engaged to be
married. It does not apply to assets transferred to a
husband, if for example, a wife purchases a property in the
name of a husband.
Between married couples or de facto partners, the
presumption of advancement is supplanted by the Family
Law Act 1975 (Cth), s 79, and in the state Property
(Relationships) Acts. Under those Acts, a married person
or de facto partner can claim an interest in assets which
are not in their name.
An interesting feature in Bosanac case was that they used
joint loans to fund the purchase of the family home but
purchased the home in the wife’s name only. Mr Bosanac was
therefore liable to repay the loans. This did not rebut the
presumption of advancement.
The Court was influenced by the fact that for land under
Torrens Title the name recorded on the titles register is
the taken to be the legal and beneficial owner of the
property and that if someone else has an interest, they can
register a Caveat. In this case, Mr Bosanac had never
claimed a beneficial interest in the property and never
registered a Caveat.
The conclusion is that the presumption of advancement
remains an effective asset protection strategy for a husband
against creditor claims by the Australian Taxation Office,
customers, clients and the Trustee in Bankruptcy, provided
that there is no suggestion that the husband retains a
beneficial interest in the property and there is no
intention to defeat creditors by purchasing an asset in the
Note: Before applying this strategy, check that
the appeal process in Bosanac has been exhausted, as this is
a decision by a trial judge which is likely to be appealed
all the way up to the High Court of Australia, given the
size of the tax debt and the value of the home.