Separating from your de facto partner can feel stressful and overwhelming, especially if you need to divide your assets. While a de facto relationship, when legally proven in the eyes of the law in Australia, has little difference to a married couple, there are still a number of questions that arise. Such as, what are my de facto relationship property rights? What am I entitled to?
To help you, we’ve answered some of the most frequently asked questions about de facto property settlements. And if you have any further queries, don’t hesitate to get in touch.
De facto relationships
For a relationship to be recognised as de facto, the couple must have been living together on a ‘genuine domestic basis’. The gender of each partner is also not relevant.
Learn more: same sex relationships
Factors that will be considered by the Family Court to determine if there is a de facto relationship include:
- The length of the relationship
- Whether there was a sexual relationship
- The particular living arrangements
- The organisation of finances
- The joint purchase or ownership of property
- Whether the relationship was registered under state law
- Whether the couple had, or cared for, children together
- How the relationship has been presented in public
It is not compulsory for a de facto relationship to be registered, however, it may be desirable for other reasons. For example:
- There is no child from the relationship
- The 2 year time period has not been achieved; but
- There is a desire to formalise future plans for superannuation, making a Will, and so on
What is a de facto property settlement?
A de facto property settlement involves dividing the assets and property that you shared with your ex-spouse.
Once the de facto relationship comes to an end, either partner may make claim for a de facto property settlement provided:
- The relationship lasted for at least 2 years, or
- There is a child from the relationship, either biological or otherwise, or
- A substantial contribution was made to either property or finances, or
- The relationship was registered
An application for a de facto property settlement can also include other aspects such as parenting arrangements and financial support.
What is included in de facto property settlements?
All assets owned by the partners, either jointly or individually, are included in a de facto property settlement, as are all liabilities. Under the Family Law Act 1975, superannuation is also considered to be property.
Learn more: splitting superannuation after separation
Other assets include motor vehicles, boats, caravans, art works, shares, and of course, financial accounts.
The Family Law Court will determine the value of these assets at the time.
What is a de facto entitled to when separated?
Following a relationship break-up, a partner from a de facto relationship has the same entitlement as a partner from a marriage. All the entitlements and obligations as described in the Family Law Act also apply.
As with a married couple, if the partners are able to arrive at mutually agreeable arrangements, these may be sent to the Court as an application for Consent Orders. Once issued, these Orders are legally binding, and have the same authority as if the Court had issued the Orders as a result of hearings.
How are assets divided in a de facto relationship?
There is no ‘one-size-fits-all’ when it comes to a de facto property settlement.
Section 75 of the Family Law Act lists the factors that are considered to ensure the assets are apportioned in a “fair and equitable” manner. This will include such things as:
- What each partner owned prior to the relationship
- Contribution to the maintenance and upkeep of those assets and the length of the relationship
- Financial contributions via wages, business, or investment
- Contribution by domestic work
- Current and future earning capacity
- Contribution to the partnership in the form of inheritance
- Future needs: both financial and in terms of support and care for children
- The age and health of the parties
This list is not conclusive – the Act and the Family Law Court are the ultimate deciders.
Once determined by the Court, Orders will be given as to how these assets will be dealt with in the de facto property settlement.
Is there a time limit on property settlement for de facto couples?
An application for a de facto property settlement must be made within 2 years of the relationship ending. After this time limit, application may only be made with permission from the Court.
If you have any questions about de facto breakup entitlements in Australia or need legal advice, you can turn to Owen Hodge’s property settlement lawyers. All of our family lawyers have years of experience and will handle your matter with care, integrity and professionalism. Call us on 1800 770 780 to schedule an initial consultation today.
De Facto Property Settlement FAQ
Not necessarily. There is no cookie-cutter way to divide your assets following a de facto breakup. Your assets and liabilities aren’t automatically split in half. Instead, how your assets will be divided depends on a number of factors, rather than a set formula.
In the case of a break-up, separated de facto couples may or may not need to divide their assets and debts. They may also need to reach an agreement on how to care for their child (if relevant) and what happens to any property shared between them.
It is very difficult to appeal or change the property settlement agreement once Consent Orders have been issued by the court. Once those orders have been issued they are final and legally binding and are only changed in the most exceptional of circumstances.