Subject to certain threshold issues couples, including same sex couples, who have been living together on a “genuine domestic basis” are considered to be living in a de facto relationship and can make an application under the Family Law Act for a division of property between them.
Whether or not you have been living together on a genuine domestic basis will usually involve a combination of factors such as:
- the length of the relationship;
- whether you shared a common residence;
- whether there was a sexual relationship;
- whether one of you was financially dependent on the other or whether there was an interdependent financial relationship where you both contributed;
- did you own, use or buy property together;
- to what extent were you both committed to a shared life;
- was the relationship registered under a prescribed law of a State or Territory;
- the care and support of children; and
- whether you presented yourselves to the outside world as a couple in a marriage like relationship.
You cannot live in a de facto relationship if you are legally married to the other person.
Threshold issues to making a claim for property settlement
Although you may have been living in a de facto relationship there are further requirements you must meet before you can bring an application to the court for a de facto property settlement. They are:
- when you file the application for property division you must be ordinarily resident in Australia; and
- you must have:
- lived together for at least 2 years; or
- have a child together; or
- have made substantial contributions to the property or in the role of homemaker or parent and, serious injustice would result if the order sought is not made.
What factors will a court consider?
How courts determine property settlements is governed by the Family Law Act 1975, in particular sections 90SM and 90SF. That legislation mandates that as a preliminary to making a property settlement order, the court must be satisfied that it is just and equitable (fair) to alter the existing property interests. In most cases where a couple has jointly owned property this initial requirement will be met however, particularly in short relationships where assets have not been merged the situation may be less clear cut.
If you ask a court how your property should be divided it will almost invariably following these steps:
- seek evidence from you to establish the net value of all of both parties’ assets (including superannuation) less any liabilities;
- assess the various contributions made by the two of you during your relationship to your property and as a homemaker and parent; and
- consider the impact of other factors such as age, health, ongoing care of children and disparity in respective incomes.
Time Limit
A time limit applies to bringing an application for a de facto property settlement. That application must be commenced within two years of separation. That time limit can only be extended in very limited circumstances.
There is no substitute for specialised family law advice so if you have questions about separation or want to know your legal position please feel free to book a confidential appointment. We can assist you at all stages of the process, regardless of the path taken. Our lawyers provide advice based on the relevant facts and the individual needs of each client. No two cases or outcomes will be the same.
For answers to frequently asked questions about de facto property division please go to our FAQ page.