De Facto Relationship

When you are in a de facto relationship, it is likely that you have acquired property and assets with your partner or you may have owned property before your de facto relationship started that you want to protect. If you decide that you want to end your relationship, you will need to make some important decisions about how that shared property should be divided between you.

Whenever possible, it is best if you and your partner can sit down and come to an agreement about this together with the assistance of solicitors. When you can’t, however, you will need to take your case to court for a judge to make a decision on property division.

Because it can be complicated to understand the laws applicable to your situation, it is important to consult with an attorney. Owen Hodge Lawyers have extensive experience in helping separated de facto couples negotiate a property settlement without going to court as well as assisting clients through the court process if this becomes necessary.

Coming to an Agreement

If you are in a de facto relationship but you want to separate, try to work out with your partner how property should be divided between you. If you cannot come to an agreement on your own, you may want to consider getting assistance from an independent mediator who can help to facilitate discussion and negotiations.

As you go through the negotiation process, both partners should have their own lawyer to provide advice to them individually about property division laws and what agreement is in their best interests. You do not want to agree to an unfair settlement, and your attorney can help you to understand what you are entitled to. When both partners know what they legally deserve, it can be easier for an agreement to be reached.

When you come to an agreement, you should make sure to formalise that agreement by having the lawyers at Owen Hodge Lawyers assist you to draft and sign the necessary paperwork. Having a formal agreement minimises the possibility of your ex partner trying to back out of the agreement or make a further claim on your property in the future.

By having a formal agreement in place you will also be exempt from the stamp duty normally charged on the transfer of assets as no stamp duty will be charged on assets transferred pursuant to the formal agreement.

When you are in a de facto relationship there are different laws that apply depending upon whether you separated before or after 1 March 2009.

If you separated after 1 March 2009

When you and your de facto partner have decided you no longer wish to live together, the date of the separation matters because there was a change to the law in Australia. For couples who separated after 1 March 2009, the Family Law Act will usually apply to the division of the parties’ property.

In Family Law, under the Family Law Act, the Family Court or Federal Circuit Court has jurisdiction to preside over your legal case in which division of property is determined. The court will consider a number of factors when dividing property under the Family Law Act including:

  • The total value of the property. The court firstly identifies the assets and debts that are to be divided as well as the value of those assets and debts. Superannuation interests are also included as assets and can be divided between the parties when a de facto couple separates.
  • The contributions made by each party during the relationship. This includes financial contributions, like earning income, non-financial contributions, and contributions by a party who took care of the children or did the housekeeping during the relationship.
  • The future needs of each partner and the financial resources each partner has available to them. The court may also consider who has responsibility for caring for any children of the relationship, as the person who has primary care for the kids may be entitled to an adjustment in his or her favour.

Taking these matters into account as well as other relevant considerations, the court will ensure that any property settlement is fair and equitable for both parties.

If you separated before 1 March 2009

Amendments to the Family Law Act changed the way in which property settlements were reached for de facto couples. Previously, the Family Law Act only dealt with the division of property for married couples, and state laws such as the Property (Relationship) Act in NSW, set out how property was divided between de facto couples.

The Property (Relationships) Act continues to apply to de facto couples who separated before 1 March 2009. When these couples cannot come to an agreement about property division, they will need to take their case to a Local Court, District Court or Supreme Court unless both partners agree that the Family Court or Federal Circuit Court should be the court to decide on how property is divided.

The court will take three steps in determining a property division under the Property (Relationship) Act when your de facto relationship ends. Many of the steps are similar to the approach taken under the Family Law Act, but each partners future needs are not considered. For example the factors taken into account include:

  1. Property will be identified and valued, including superannuation.
  2. The court will assess the contributions each partner made.
  3. The court will create a fair and equitable property settlement.

Your court proceedings to have the court divide up marital property must start within two years from the date that you separated. Since more than two years have passed since 1 March 2009, the laws dealing with separations before this date are no longer applicable to most couples.

Getting Help Dividing Property

The outcome of your property settlement is going to play a major role in determining your future financial security. Call us at 1800 770 780 or contact us via ohl@owenhodge.com.au to schedule a consultation with our experienced family lawyers.

You should get help from Owen Hodge Lawyers in negotiating an agreement or convincing the court that your preferred property division is the equitable one.

Call us today on 1800 770 780 or contact us via ohl@owenhodge.com.au to learn how we can assist you with your property division after your de facto relationship ends.