De Facto Property Settlement
What is a de facto property settlement?
A de facto property settlement is a legal process in Australia that determines how the property, assets, and financial resources of two people in a de facto relationship will be divided when their relationship ends. This settlement is governed by the Family Law Act 1975 and allows de facto couples to resolve financial matters without going through a formal divorce process.
How do I know if I am in a de facto relationship?
A person is considered to be legally in a de facto relationship with another person if:
They are over the age of consent
They are committed to each other on a permanent or indefinite basis
They live together on a genuine domestic basis
They are not in a registered relationship or legally married
For more information see our page: De facto relationships
What does the court consider when determining a de facto property settlement?
The court will consider factors such as:
Contributions made by each party to the relationship (financial, non-financial, and homemaking contributions).
Future needs, including factors like age, health, earning capacity, and care responsibilities.
The current value of assets and liabilities.
Any financial resources or superannuation.
Any financial agreements or child support arrangements in place.
How do you split property in a de facto relationship?
The court uses a four-step process to determine the best way to divide assets between two people.
First, each party needs to agree on the assets and the debts.
Second, both parties will consider the financial and non-financial contributions.
Third, factors that will affect individuals in the future, such as income and child custody arrangements, are considered.
Fourth, the outcome is assessed to ensure it is both just and equitable.
Are de facto partners entitled to half?
Not necessarily. Australian law does not prescribe an automatic 50/50 division of property in de facto relationships. The division depends on individual circumstances, including the parties' contributions and future needs. It may result in an equal division, but it could also be disproportionate based on the specific facts of the case.
Is there a time limit on a property settlement?
Yes, there is a time limit for making a property settlement application in a de facto relationship. In most cases, the time limit is two years from the date of separation. Failing to apply within this time frame may affect your ability to seek a property settlement through the family law courts.
What happens to my superannuation?
Superannuation can be subject to property settlement in a de facto relationship. It is treated as an asset to be divided between the parties. There are several options for handling superannuation:
It can be split, with a portion allocated to the other party's superannuation fund.
It can be retained by the superannuation holder, with an adjustment made in favor of the other party by allocating a larger share of other assets.
A combination of both split and adjustment may be used.
The specific approach will depend on the circumstances and the agreements reached between the parties or ordered by the court.
Can a de facto claim spousal support?
Yes, in Australia, a person in a de facto relationship can make a claim for spousal maintenance under certain circumstances. Spousal maintenance refers to financial support paid by one party to the other to assist with their living expenses and financial needs. However, there are specific criteria and considerations that must be met for a de facto partner to make such a claim. For more information see our page: spousal maintenance.
How can I protect my assets?
Protecting your assets in a de facto relationship is a valid concern, especially if you want to ensure that your financial interests are safeguarded in the event the relationship ends. We recommend putting a Binding Financial Agreement in place.
Please note that property settlement in de facto relationships can be legally complex and depends on individual circumstances. It's advisable to seek legal advice from an experienced family lawyer to ensure your rights and interests are protected throughout the process. Additionally, you should be aware that property settlement laws and regulations may change over time, so consulting with a legal professional for up-to-date information is crucial.
