How to manage joint debts and assets during bankruptcy
Last updated 2 November 2022
Last updated 2 November 2022
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It’s a common myth that if one partner goes bankrupt, the other one must as well. That’s not true. Bankruptcy affects your spouse if:
Bankruptcy is a legal process through which you are declared unable to pay your debts when they fall due. You may file for bankruptcy (voluntary bankruptcy), or alternatively, creditors can apply to have you declared bankrupt. If you are declared bankrupt by either of the above means, you will be removed from managing your own money and assets, and a trustee will be appointed to manage your money and assets.
The purpose of this fact sheet is to explain what will happen to your joint debts and assets when you, a co-owner or a joint debtor become bankrupt.
Once a trustee has been appointed, they will take the following steps to repay your outstanding debts:
Secured debts are debts backed or secured by property or other assets, such as:
The specific assets that secure your debts will be sold. The proceeds of sale will then be used to repay the respective debts. If there is money left over after your secured debts have been repaid, the trustee will use this money to pay your unsecured debts.
Unsecured debts are debts not secured by an underlying asset, such as:
If you have unsecured debts which have not been paid, the trustee will sell other assets that you own to repay these debts (see section on unprotected assets).
In addition, the proceeds of sale from your assets may be used to satisfy interest repayments on your loans and other fees (for example, those charged by your bank), including late payment or termination fees.
“I’m married, so both my spouse and I have to file for bankruptcy.”
False. You are not required to file for bankruptcy just because your spouse files for their own bankruptcy or is declared bankrupt.
Your bankruptcy may affect your spouse if:
Before your assets can be sold, the trustee must determine whether you own the asset, or whether ownership lies with your spouse.
This is important because:
To determine whether you or your spouse owns the asset, the trustee will:
Ultimately, the trustee will establish ownership depending on the facts of your case.
Before filing for bankruptcy, people may give away or sell an asset to their spouse for a price below the market value of the asset. For example, a person may sell the family home to their spouse for $250,000 when the market value of the home may be $500,000. If you find yourself in this situation, the trustee may investigate your dealings with your assets and, in the circumstances outlined below, may be able to reverse these transactions to recover the assets you disposed of.
The trustee can recover assets if:
Bankruptcy is a legal status attributed to individuals. However, if couples have substantial joint debts, it may make sense for both partners to file for their individual bankruptcy at the same time if neither can service the joint debts alone.
This will involve submitting separate bankruptcy documentation for each person, and all joint debts and joint assets must be listed in full in the relevant documents.
A joint debt is a debt that you share with other people. Each person that shares the debt is a joint debtor. Joint debts may be understood as meaning joint responsibility. This means that all joint debtors are responsible for repayment of the entirety of the debt.
A guarantor is a person that has agreed, in writing, to pay your debts if you become bankrupt and/or are unable to repay your loan.
If one joint debtor enters bankruptcy, the other joint debtors will become responsible for repaying the entirety of the debt. For example, if two people share a mortgage, and one becomes bankrupt, the non-bankrupt debtor will become responsible for repaying the mortgage.
However, if the debt is guaranteed by another person (known as a guarantor), they will become responsible for that part of the debt which they have agreed to guarantee.
If you are dealing with joint debts and only one debtor is declaring bankruptcy, the best thing to do is to let the trustee know which debts are joint. If you are not sure which debts are joint, you should check with each of your creditors to confirm the position.
A joint asset is an asset that you own with another person. This is known as co-ownership.
Co-ownership means that more than one person has contributed money to purchase an asset. For example, if two people contribute money to buy a car, the car is a joint asset. However, if only one person contributes their money to the purchase of the car, the car is not a joint asset.
Not all assets that you own or co-own with another person will be affected in bankruptcy. Certain assets are protected and cannot be sold by a trustee to satisfy your debts. This means that if you are made bankrupt, you will be able to keep these assets.
All other assets not listed in section 4.1 are unprotected assets which can be used by the trustee to satisfy your debts. On bankruptcy, these assets may be sold by the trustee.
If an unprotected asset is also a joint asset, part of the sale proceeds from the sale of that asset by the trustee must be given to the non-bankrupt co-owner in accordance with the proportion of their share in the asset. For example, if there are two co-owners of an asset, and each contributed 50% of the purchase price, then the non-bankrupt co-owner will be given 50% of the proceeds of sale of that asset.
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This resource was updated 2 November 2022. This is legal information only and does not constitute legal advice. You should always contact a lawyer for advice specific to your situation.