De Facto Separation

De Facto Lawyers in Melbourne

One of the difficulties in defining a de facto relationship is that every de facto relationship, like every married relationship, is very different.

Many people are in a de facto relationship but don’t realise that they are, and other people mistakenly believe that their de facto relationship gives them property rights against their partner.

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What is a De Facto Relationship?

A couple is in a de facto relationship if they live together on a genuine domestic basis. 

In deciding if the parties are in a de facto relationship, the court looks at all the circumstances of the relationship, but particularly at:

  • The duration of the relationship;
  • The nature and extent of their common residence;
  • Whether a sexual relationship exists;

Related Article: Proving The Existing of a De Facto Relationship

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  • The degree of financial dependence or interdependence, and any arrangements for financial support, between them;
  • The ownership, use and acquisition of their property;
  • The degree of mutual commitment to a shared life;
  • Whether the relationship is or was registered under State or Territory law as a prescribed kind of relationship;
  • The care and support of the children; and
  • The reputation and public aspects of the relationship.

A de facto relationship can exist even if:

  • The parties live in separate towns, cities or even countries;
  • The relationship is not exclusive;
  • The couple does not live together full-time;
  • There is no sexual relationship; or
  • One person is legally married to someone else or in another de facto relationship

Each case is decided on its facts.  Some facts may indicate a de facto relationship existed and others may indicate that it did not.  There may also be contradictory indications that the de facto relationship started or ended at a particular time. It is the whole picture which must be considered and attributing greater importance to certain factors is not helpful as every relationship is different.

De Facto Relationship Property Rights

1. Identify all of the existing interests of the couple, together and individually, in all assets, liabilities and financial resources and work out the “net asset pool” available to be divided. If you cannot agree with your former spouse or partner about the value of an asset, an expert may be appointed to value it.

2. Determine if it is just & equitable (fair) to make an adjustment to the property that each party owns (and accordingly order a property settlement), or whether they should just keep what they already have.

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3. Assuming it is just & equitable (fair) (as in most cases) to make orders for a property settlement, look at the contributions each party made during the relationship and after separation, including:

  • Financial contributions made by each party or on behalf of each party. These include contributions made by a party at the start of the relationship.  For example, one party may have owned a house at the start of the relationship. Contributions which are particularly relevant include wages, gifts and inheritances.
  • Non-financial contributions made by each party or on behalf of each party. These include contributions as a home-maker or parent and home renovations.

4. Look at the circumstances of each party after separation and the ongoing needs of each party. Many factors can be taken into account at this step, including:

  • the age and health of each party;
  • whether one party has the care of a child or children of the marriage or relationship;
  • the incomes of each party; and
  • the future employment prospects and earning capacities of each party.

These factors can have a significant impact upon how the property is divided.

5. The court checks that the outcome is “proper” or “appropriate”, taking into account all of the circumstances of the particular case. If not determined at an earlier stage, whether there should be a split of superannuation or the proportions of any superannuation split may become an issue at this stage.

De Facto Separation Lawyers

Frequently Asked Questions

Hidden First Field
What is a de facto relationship?

One of the difficulties in defining a de facto relationship is that every de facto relationship, like every married relationship, is very different. 

Many people are in a de facto relationship but don’t realise that they are, and there are often people who mistakenly believe that their de facto relationship gives them property rights against their partner.

It need not be an exclusive relationship, and can exist even if one person is legally married to someone else or in a concurrent de facto relationship.

A de facto relationship exists where parties live together on a “genuine domestic basis”.

To be in a de facto relationship:

  • You cannot be legally married to each other;
  • You cannot be related.

For the Family Law Act 1975 to apply to disputes about property and spousal maintenance following the breakdown of your relationship, you must have been living together for at least two years. If you don’t meet this requirement, the Act may still apply if one or more of the following conditions are met:

  • One party made substantial contributions and a failure to make an order which recognises those contributions will result in a serious injustice;
  • There is a child of the relationship; or
  • The relationship was registered under a prescribed law of a State or Territory.

A finding that a de facto relationship existed between certain dates is made by looking at a number of factors:

(a) the duration of the relationship;

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

(c) whether a sexual relationship exists;

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

(e) the ownership, use and acquisition of their property;

(f) the degree of mutual commitment to a shared life;

(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

(h) the care and support of children; and

(i) the reputation and public aspect of the relationship.

How long can we live together before we are considered to be in a de facto relationship?

There is no set time a couple must have lived together before they are considered to be in a de facto relationship. Some people believe that six months or two years is the magic number. This is incorrect. 

If you have been in a de facto relationship for two years, there is a right to apply for Court orders, but there is no guarantee of success. If you have lived together for less than two years, you may have the right to apply anyway; usually based on having a child together, making significant contributions. 

When can a de facto party make a property or maintenance claim?

Simply because a de facto relationship existed does not necessarily entitle a de facto partner to make a property settlement claim against the other party.

At least one of the following extra factors must apply:

  • the total length of the de facto relationship was at least two years; or 
  • there was a child of the de facto relationship; or 
  • the party who applies for a property settlement made substantial contributions (financial, non-financial or homemaking and parenting) and failure to make the order would result in serious injustice to that party: or
  • the relationship is or was registered under a prescribed law of a State or Territory.  

Claims must be made within 2 years of the breakdown of the relationship.

Claims by de facto parties in Western Australia must be made to the Family Court of Western Australia. In all other states, they are made to the Federal Circuit and Family Court of Australia. 

What am I entitled to after the breakdown of a de facto relationship?

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

How are disputes between de facto couples resolved?

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, property disputes between de facto couples are resolved under State or Territory law.

What am I entitled to in a de facto relationship?

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 incomes, 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.

What happens when a de facto relationship ends?

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 lawyer. This agreement is usually documented in court orders. If they can’t agree, then one party may initiate court proceedings.

What are de facto relationship property rights?

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.

How do assets get split when a de facto relationship ends?

The process followed to determine how property should be divided is:

1. Identify all of the existing interests of the couple, together and individually, in all assets, liabilities and financial resources and work out the “net asset pool” available to be divided. If you cannot agree with your former spouse or partner about the value of an asset, an expert may be appointed to value it.

2. Determine if it is just & equitable (fair) to make an adjustment to the property that each party owns (and accordingly order a property settlement), or whether they should just keep what they already have.

3. Assuming it is just & equitable (fair) (as in most cases) to make orders for a property settlement, look at the contributions each party made during the relationship and after separation, including:

  • Financial contributions made by each party or on behalf of each party. These include contributions made by a party at the start of the relationship.  For example, one party may have owned a house at the start of the relationship. Contributions which are particularly relevant include wages, gifts and inheritances.
  • Non-financial contributions made by each party or on behalf of each party. These include contributions as a home-maker or parent and home renovations.

4. Look at the circumstances of each party after separation and the ongoing needs of each party. Many factors can be taken into account at this step, including: 

  • the age and health of each party;
  • whether one party has the care of a child or children of the marriage or relationship;
  • the incomes of each party; and
  • the future employment prospects and earning capacities of each party.

These factors can have a significant impact upon how the property is divided.

5. The court checks that the outcome is “proper” or “appropriate”, taking into account all of the circumstances of the particular case. If not determined at an earlier stage, whether there should be a split of superannuation and the proportions of any superannuation split may become an issue at this stage.

What property is included for division between a de facto couple?

All types of property can be taken into account when negotiating a property settlement including: 

  • interests in real estate;
  • interests in businesses;
  • interests in private companies, partnerships and trusts;
  • shares in public companies;
  • funds in bank accounts and other investments;
  • superannuation;
  • motor vehicles and boats;
  • household goods and furniture;
  • artworks and wine collections;
  • overseas assets; and
  • debts.

Property can be divided whether it is owned:

  • by both of the parties to the relationship;
  • by one of the parties to the relationship; or
  • by one or both of the parties to the relationship together with a third party.

In certain circumstances, property controlled (but not owned) by one party might also be divided, even if that party is not the legal owner of the property. For example, assets held in a family trust or assets transferred to a third party.

An expected inheritance is usually not regarded as “property”; however, it may still be treated as a “financial resource” and considered in a general way in the overall settlement. Entitlements to long service leave may be treated in the same way. Such treatment will change upon receipt of inheritances and leave entitlements.

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Gunter L.
Jackie Campbell and her associates provided our family the highest quality service in a very difficult matter. At all times Jackie shared her professional experience with compassion, expert clarity and focus to follow process in order to allow settlement in the best interest of the younger family members who matter most in family disputes. If ever required we would not hesitate to utilise her services again and highly recommend Forte Lawyers to others seeking a high quality expert family lawyer.
Christopher S.
Legal Minds retained Jackie Campbell (Partner) of Forte Family Lawyers to prepare an expert witness report that was relied upon in complex litigation in the NSW Supreme Court involving six parties. The matter concerned the drafting and procedures required for entering into a purported financial agreement. Jackie was focused, punctual and delivered a comprehensive analysis that all parties considered making it possible to settle without the cost and imposition of ongoing protracted litigation. We are grateful to have had the benefit of Jackie's professional knowledge and expertise to assist us and would not hesitate to retain her services again.

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535 Bourke Street

Melbourne 3000 Victoria Australia

PO Box 13172

Law Courts

8010 Victoria Australia

DX 364 Melbourne

Telephone

61 3 9248 5800

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61 3 9248 5899

Email

enquiries@fortefamilylawyers.com.au

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