De Facto Relationship - Property Settlement Fact Sheet

When a couple in a De Facto Relationship separate, it is necessary to consider Property Settlement entitlements.

Often couples can agree on how to split up their property fairly. Even so, it is an excellent idea to have your solicitor put this agreement in writing.

This agreement can be sent to a Court to be approved. It can also be done by way of a document called a Termination Agreement. In some cases the couple may have entered into an agreement about property division (called a Domestic Relationship Agreement) before they even commenced living together.

If the property division is disputed then the matter will go to Court (Local Court, District Court or Supreme Court) for a decision to be made. Generally, a Court will only make a property settlement order if the relationship has lasted for 2 years or more. There are exceptions eg if there is a child of the relationship.

Valuing the Property

The first thing the Court will want to know is the value of the Property.
The Court will take into account all the property presently owned by the partners, whether owned in one name or joint names.

This includes:

▪  Property purchased during the relationship;
▪  Gifts and inheritances received by each party;
▪  Property each party owned before the relationship;
▪  Assets and goodwill that a party has built up in a Business.

In a De Facto Relationship (unlike a Marriage) superannuation cannot be split, but it is still very important in the property settlement.

Dividing the Property

In dividing the property, the Court mainly looks at the contributions made by each party. This includes financial and non-financial contributions.

For example the Court may take into account:

▪  What each person brought into the relationship when it started;
▪  Money earned during the relationship;
▪  Work done on a property eg building and renovating;
▪  Work done as a homemaker eg cooking, cleaning;
▪  Looking after children.

Spouse Maintenance – De Facto Relationship

In some cases the Court can order one partner to pay maintenance for the other.

To be eligible for such maintenance you have to show one or both of the following:

1) You are unable to support yourself as you are caring for a child of the relationship (or a child of the other person) and that child is under 12 years old (under 16 years old if physically or mentally handicapped).

2) You are unable to support yourself adequately because your earning capacity has been adversely affected by the circumstances of the relationship and:

a) An order for maintenance would increase your earning capacity by enabling you to do training, and

b) It is reasonable to make the order.

Time Limits

Court proceedings for a Property Settlement or Spouse Maintenance need to be commenced within 2 years of the date of separation.

Outside of this period special leave needs to be outside of this period special leave needs to be obtained from the Court to proceed with a court case.











Disclaimer - This article is offered for general information purposes only. It is not offered as and does not constitute specific legal advice or opinion. The accuracy of the information is not guaranteed. You should not act or rely upon any of the information contained within this article without seeking the advice of a qualified solicitor who specialises in the particular area of expertise and jurisdiction that you require.