Although moving out of the home does not mean that you give up any rights there may be practical reasons why it is not the best decision. These include:

• Your spouse or former partner may not keep the home in the same condition you would and this may affect the value of the property. The last thing you want is for your spouse or former partner to get the property cheaply as part of the settlement because they have let it run down;
• Where there is a minimal mortgage payment, your partner may have little incentive to settle property matters because they are receiving the benefit of cheap housing while you have to find alternative accommodation and possibly pay rent;
• In deciding where children live, it is likely to be a relevant consideration that one parent can provide the stability of familiar surrounds;
• When property prices are low, keeping the home as part of your settlement can be a considerable windfall in the long term and a great financial advantage in the short term. If you and your spouse or former partner both want the home in the settlement, you significantly lessen your chances of success if you move out and they remain living in the property.

If they won’t leave voluntarily there are very limited circumstances in which you can force them out. If there has been domestic violence you can apply through the Magistrates Court for a protection order that orders your partner to stay away from you and where you live. The Federal Circuit Court can also order your spouse or former partner to move out as part of property settlement proceedings.

You can if you are an owner or co-owner of the property and it might be a very sensible thing to do if your partner has already moved out and you do not want them moving back in. One of our client’s came home from work to find her husband, who had moved out months before, in the bathroom taking a bath. While changing the locks is a good way to make sure that you don’t come home to an unwelcome house guest, using that tactic is far less sensible or effective to get that unwanted partner to move out. Keep in mind that if your partner is a co-owner they are also entitled to change the locks which can give them entry and exclude you.

If you are a tenant you should not change the locks without the agreement of the landlord.

The Family Law Act sets out what is taken into account when working out the legal equivalent of a fair property division. However it does not define what value or percentage split of assets between couples is a fair result. The decided cases specifically say that 50/50 is not a starting point. In practice, 3 different Judges hearing the same matter are likely to come up with 3 different versions of what is fair.

The bottom line is that letting a court decide does not give you certainty and usually settling your property division directly with your spouse is a much quicker, cheaper and better option. One of the reasons you should always use a specialist family lawyer to guide you through that process is so they can give you realistic expectations of what a fair outcome might look like.

No. The assets you have in your name before you marry or start living together can be subject to claim by your spouse or partner. The only way to protect, or quarantine, those assets from a property settlement claim is through the use of a Financial Agreement (before or during the relationship).

Don’t get us wrong, we are in your corner, but by focusing on them you are taking your eye off what is really important – getting the best possible outcome for you. This might seem like the same thing but in practice it is not. It is important that your lawyer has a clear idea of the realistic outcome and the means to achieve that outcome. Asking your lawyer to narrow your options to the single minded pursuit of a destructive outcome might seem worthwhile to you now but you are unlikely to find the result palatable and you certainly won’t like your bill.

The law of all States and Territories in Australia, with the sole exception of Western Australia, treats heterosexual and same sex de facto couples exactly the same as people who have married.  The only real difference is that there are qualifying factors (set out below) before you can make an application to divide your assets after separation.  Otherwise all of the information on this website applies to you.  If you are in a de facto relationship you may seek a property settlement provided at least one of the following applies to you:

• You and your partner lived together for at least 2 years (this can include time interrupted by separation/s); or
• You and your partner have a child together; or
• You made a significant contribution to your partner’s property such that if a property settlement order was not made a serious injustice to you would result; or
• You made such a significant contribution to the relationship as a homemaker or parent that if a property settlement order was not made a serious injustice to you would result; or
• The relationship was registered under relevant state legislation.

It is possible.  Each individual circumstance is different.  For property settlement purposes whether or not you are/were a de facto couple will involve the following issues:

• the length of the relationship;
• the nature and extent of your common residence;
• whether a sexual relationship exists;
• the degree of your financial dependence or interdependence, and any arrangements for financial support between you;
• the ownership, use and acquisition of your property;
• the degree of mutual commitment to a shared life;
• the care and support of children; and
• how you represented yourselves to the outside world (eg did your friends and family know that you were living together as a couple?).

In essence the more your relationship looks like a “marriage”, the more likely it is that you are a de facto couple. 

Just because you own something at the beginning of the relationship does not mean it is quarantined from claim by your spouse/partner.  The bad news is that except in limited cases all property of the parties to a relationship is included in the asset pool to be divided.

That does not mean that your initial contribution (which is what we lawyers call the assets you came into the relationship with) will necessarily be ignored.  It will depend on a number of factors such as the net value of those assets, whether you still have those particular assets, other contributions during the relationship and whether the relationship was brief or lengthy. 

If you cannot support yourself and your spouse/partner has money left over after meeting their own reasonable needs you can apply to the court for what is known as “spousal maintenance”.  The same is true if you were in a de facto relationship for periods totalling at least 2 years or you have a child together or you made a significant contribution to your partner’s assets or to their family and as a consequence of which it would be unjust for a Court not to make an order.

Time limits apply to bringing applications for spousal maintenance.  If you were married the application should be started before the first anniversary of your divorce.  If you are a de facto couple the application should be started within 2 years of separation.