Married vs de facto?

The law relating to property settlements is the same whether you’re a married or de facto couple.

For de facto relationships, provided separation occurred after 1 March 2009 (when the legislation changed) marriage and de facto relationships are treated the same under the Family Law Act 1975.

A de facto relationship exists where a couple has been living together in a “genuine domestic relationship” and they have either:

  • been living together for at least 2 years; or
  • there is a child of the relationship; or
  • it would be unjust not to recognise a de facto spouse’s financial or non-financial contribution.

Do we split everything 50/50?

There is no starting point of an equal division of your assets.

It is a common misconception that each party will simply keep the assets already in their sole name and split the jointly owned assets 50/50.

While this approach may be appropriate in some cases, it may be to one party’s disadvantage in other cases. It is important to work through the steps of a property settlement with your family lawyer to determine what is a fair outcome.

What is the process to work out what my entitlements are?

The Family Law Courts follow a step-by-step process to determine who is entitled to what in a property settlement, as follows:

  1. Determine whether it is just and equitable to make an order.
  2. Identify and value the assets, debts and financial resources of the parties.
  3. Assess the contributions of the parties.
  4. Identify the current and future needs of the parties and other relevant matters.
  5. Determine what a just and equitable division will be.

Contributions

In assessing contributions, we must consider the respective contributions of both parties made during the relationship but also, where relevant, before and after cohabitation.

The contributions to be considered are financial and non-financial contributions to the acquisition, conservation or improvement of any of the property owned by the parties solely or jointly, as well as contributions to the welfare of the family, including any contribution made in the capacity of homemaker or parent.

‘Property’ includes assets such as the family home, money in the bank and motor vehicles.

After considering each party’s contributions and weighing them up alongside all other contributions, we often use percentages to establish where each party’s entitlements lie at this stage of the process.

Current and Future Needs

You may be entitled to an adjustment of the property pool in your favour (ie. a higher percentage loading) because of your current and future needs. Common needs that impact the division of property are the age and state of health of each party, income disparity between the parties and who has the greater percentage of care for the children.

Other relevant matters that may impact your entitlements are where you have access to financial resources (ie. you are a beneficiary of a trust) or are expecting to come into money in the future (ie. an inheritance).

At this stage of the process, a parties’ percentage entitlement may be adjusted either higher or lower because of any additional need factors.

Just and Equitable Outcome

All family law matters are dealt with on a case-by-case basis and no two matters are the same.

For this reason, it is important to seek expert advice on what your entitlements are based on your individual circumstances.

At your initial consultation, we can take you through the steps of a property settlement and advise you on the range of your entitlements and likely outcome of your property settlement.

If you would like to speak a family lawyer for advice on your entitlements, feel free to contact us.


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