Property Settlement (Marriage & De-Facto)
What happens to property when you separate?
Is the law the same for marriage & defacto?
The law relating to property settlements is the same whether you are married or whether you are in a de facto relationship. An exception to this is if you were in a de facto relationship and you separated before 1 March 2009.
A defacto relationship can exist between two persons of different sexes. A de-facto relationship can also exist between two persons of the same sex. A person can be in a de facto relationship even though they are legally married to someone else or they are in a de facto relationship with another person.
If your relationship breaks down, you may be able to sort out what to do with the property of the relationship in a friendly way with your partner. Alternatively, you may need assistance to reach an agreement. Your family lawyer can help you negotiate a settlement with your partner.
Mediation can also help. At mediation you are assisted by an independent person to negotiate an agreement.
If a settlement is reached it should be formalised. That can be done by Consent Orders made by the Family Court or by a Binding Financial Agreement (Separation Agreement). A separation agreement provides finality so that neither party can make a future claim. It also provides exemption from stamp duty for assets transferred pursuant to the Order or Financial Agreement.
In fact, people can enter into Financial Agreements before they are married (Prenuptial Agreement) or when they commence living together. They can enter into Financial Agreements during their marriage or relationship (i.e. while they are happily together). Such Financial Agreements provide for what happens regarding division of property should they separate. These Financial Agreements are binding (provided that they meet the conditions set out in the Family Law Act).
Related Article: A step by step guide to obtaining a separation agreement
Going to Court
If you were married and are now divorced, then you need to commence Court proceedings within 12 months from the Divorce Order taking effect (if you are late you have to get permission from the Court to commence your case).
If you were in a de facto relationship, then you need to commence Court proceedings within two years of the date of separation (if you are late you have to get permission from the Court to commence your case).
In a de facto relationship normally a Court will only make a property settlement Order if the de facto relationship has lasted for two years or more. There are, however, exceptions to this, eg. if there is a child of the relationship.
The steps in working out the appropriate division of property are as follows:
In some cases, one spouse may be entitled to spousal maintenance. To be eligible for spousal maintenance you need to show:
If you were married and are now divorced you must apply for spousal maintenance within 12 months of your Divorce Order taking effect (if you are late you have to get permission from the Court to commence your case).
If you were in a de facto relationship, you must apply for spousal maintenance within two years of separation (if you are late you have to get permission from the Court to commence your case).
What is the first step?
We understand that commencing a property settlement is a difficult decision for both parties. It's an emotional time for everyone involved and the complexities surrounding dividing assets can be daunting. For these reasons we designed a 'First Step Package' (FSP) for those taking their first steps in family law.
The FSP is a fixed-cost consultation with one of our highly experienced family lawyers, with no time limit.
During the FSP your lawyer will:
Following the FSP you'll receive a written report about your situation, which will outline what was discussed (above) and provide you with recommendations on the next steps you should take. You'll also receive a free information pack that will be tailored to your situation.
To find out more click this link: First Step Package
What happens during the property settlement process? (Video)
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