De Facto Lawyers Melbourne

Further factors taken into account when defining a de facto relationship include:

(a) the length of the relationship;

(b) the extent and nature of their shared residence;

(c) if an intimate or sexual relationship is present;

(d) what the financial arrangements both parties consist of, and if there are any financial support arrangements in place, or if financial interdependence or dependence exists ;

(e) how property is owned, used, and has been acquired ;

(f) the level of commitment from both parties regarding a shared life

(g) if the relationship has been registered at any time under relevant Australian laws as a prescribed kind of relationship;

(h) how children are cared for and supported, and

(i) the public reputation of the relationship.

If you and your former partner have children from your de facto relationship, you have a few options for deciding how care and responsibility (child custody) will be managed. Parenting arrangements can be made formally, through consent orders, or informally through a parenting plan.

Many people choose to use consent orders to finalise both financial settlement and children’s matters, but every relationship is different. Parenting disputes can be managed with the assistance of a family lawyer, through mediation, family dispute resolution, or, if there are no other options left – in court.

Under the Family Law Act, de facto family law issues are treated similarly to those of previously married couples as long as a genuine de facto relationship is determined. Financial settlement is assessed based on a number of factors that take into account both parties’ roles and contributions during their time together.

Assets can be divided by way of Consent Orders or a family law financial agreement. If consent orders are opted for, the court will need to ensure that the agreement is a fair settlement for both parties.

1. It is essential to take into account both partners’ current interests in all assets, such as the family home, debts, and financial resources, when calculating the “net asset pool” that will be divided. If you have difficulty reaching an agreement about the value of a particular asset with your former spouse or partner, it may be beneficial to ask for assistance from an expert.

2. Before any asset split is actioned, it needs to be determined if the division of the property pool is just and equitable (fair). In some cases, each individual will keep the assets they have, and in other cases, an adjustment will be made on behalf of each party via binding financial orders.

3. If a just and equitable property settlement is to be made, it’s important to consider the contributions each party has made during their relationship and since separation. These include:

All financial contributions made by either party or on their behalf, including those at the commencement of the relationship, should be taken into consideration. Wages, presents, and inheritances are especially significant in this regard. Additionally, any existing property owned prior to the relationship must also be noted.

Non-monetary contributions made by both parties – or on behalf of them, like taking on responsibilities as a homemaker or parent and any home improvements, are also considered.

4. When determining the post-separation circumstances and ongoing requirements of each party, it’s important to take into consideration a number of factors, such as:

• The health and age of each party

• If one spouse or both have custody over children from the relationship

• Earnings, future job opportunities and potential income of both parties

All of these aspects markedly influence the division of assets.

5. The court ensures that the ruling is just and appropriate, taking into consideration all factors of the specific case. If not already determined in a prior stage, whether there must be a division of superannuation or how much should be split may also become an issue at this point.

Despite popular beliefs, there is no ‘magic’ number that defines when de facto relationships become official. Many people say it’s six months or two years, but this isn’t actually correct.

How long a de facto relationship lasted is just one of the factors that will be considered if a legal matter arises. Your particular circumstances will be assessed, and it must be shown that there was a mutual commitment and that you were living together on a genuine domestic basis.

After a timeframe of two years, you may apply to the Federal Circuit Court for property orders to be made, but this doesn’t mean they will be granted. Many aspects of a relationship will be considered. Even if you’ve had a shorter relationship, you may still be able to apply for property settlement, especially if there are children involved or you have made contributions that are deemed significant.

The existence of a de facto relationship in itself doesn’t automatically entitle a former partner or current de facto partner to anything in a property settlement agreement. Family law courts take a number of factors into account, such as:

• How long you were together

• If you had any children together

• That the person making the claim contributed to the relationship substantially, whether financially or otherwise, this includes earning a wage, home duties, bringing property into the relationship, raising a child, business income and inheritances.

• If the result of not making a financial order would create a serious injustice to the party applying

• If the relationship is or was ever registered under a prescribed law of a State or Territory.  

• There are time limits that apply to making a claim, too, which means that any requests to divide property or assets must be made within 2 years of a de facto separation.

If you live in Western Australia, you will need to apply to the Family Court of Western Australia. Anywhere else in Australia, you will need to make a claim through the Federal Circuit and Family Court of Australia. 

You may be entitled to a property settlement or maintenance. De facto partners have the same rights as married couples, provided they meet the definition of a de facto relationship and the requirements for an application to be made. Maintenance is usually only ordered for a short time before property orders are made or implemented.

There is no fixed formula for working out how property is divided after the breakdown of a de facto relationship. The factors that need to be taken into account include:

• Whether it is just and equitable to make property orders

• The contributions of each party. These can be financial, non-financial, homemaking or parenting

• Other factors such as income, future earning capacities and the care of children

We can advise you about how the law will apply in your case and the range of results you can expect.

Most couples negotiate a settlement and enter into consent orders. Family dispute resolution and mediation are useful to assist parties with this. If they can’t agree, all parenting and most property settlement disputes are resolved in the same way as disputes between legally married couples – in the Federal Circuit and Family Court of Australia.

In Western Australia, they are resolved by the Family Court of Western Australia. Very rarely are property disputes between de facto couples resolved under state or territory law.

No formal document is required or available to prove that the de facto relationship has ended.

Parties usually resolve parenting and property issues by consent with the assistance of a family dispute resolution practitioner, mediator or family law firm. This agreement is usually documented in court orders. If they can’t agree, then one party may initiate court proceedings.

To determine how property division will occur, the following steps will occur:

1. All assets, financial resources and liabilities are identified to create a ‘new asset pool’. If there are items that you and your ex-partner are unable to agree on a value for, an independent valuation may be required.

2. It will need to be determined if it is equitable (fair) for an adjustment to be made in favour of either party, which is determined by criteria that the court defines.

3. If it is deemed to be fair to split the property in a certain way, a binding financial agreement will be drawn up. The following factors will be considered:

What financial contributions did both parties make during the relationship? This will include everything from daily living arrangements to major purchases, loans from family members and family business interests. It will also consider who owned what at the start of the relationship and if either party has significant debts. Wages, inheritances and gifts during the relationship are also looked at closely.

What both parties contributed in non-financial ways, or what others may have contributed on their behalf. This can include caring for a child, housework, running a business or home maintenance and renovations

Consider the short-term and long-term needs of both parties after separating, such as:

• How old both parties are, and what their health is like

• If there are children, who will have care

• How much both parties earn

• What future employment opportunities and earning ability both parties will likely have

These factors can significantly play a part in the outcome of court proceedings.

The court will then assess whether the outcome is fair or appropriate after considering the many variables at hand. If not accounted for prior, a superannuation split may also occur at this stage of proceedings.

When negotiating property splits, all types of property and interests in them are considered. This includes:

• Real estate
• Businesses
• Partnerships, trusts and private companies
• Shares and other investments
• Bank accounts
• Art, wine collections and jewellery
• Household belongings and furniture
• Cars, boats, caravans and motorbikes
• Assets that are overseas
• Debts – both parties’ debts will be considered as part of the asset pool

It doesn’t matter if assets are joined jointly, individually, or with third parties; they will be assessed.

In some instances, if one party controls a property, even if they don’t own it, this may be divided into a property settlement. This includes assets that may have been transferred to someone else or family trust assets.

Expected inheritances are rarely considered property but may still be assessed as part of an individual’s long-term ability to manage finances. They are often seen as a ‘financial resource’, the same way that long service leave or other owed payments, such as outstanding loans or royalties, may be.

For personalised guidance on your unique situation, reach out to our experienced Melbourne de facto lawyers today to discuss your circumstances in detail.