We weren’t married – are we entitled to a property settlement?
We weren’t married – are we entitled to a property settlement?
Many people assume that because they were never married, they have no legal rights when a relationship ends. That is not the case. If you were in a de facto relationship, Australian law may entitle you to similar property rights as a married couple – and the process for sorting it out can begin even before you move out.
What is a de facto relationship?
A de facto relationship is one where two people live together on a genuine domestic basis without being married. Courts consider a range of factors when determining whether a relationship qualifies, including:
- the length of the relationship
- whether you lived together and for how long
- the degree of financial dependence between you
- whether there are children from the relationship
- the public aspects of the relationship, such as how you presented as a couple
Do I qualify for a property settlement?
Under the Family Law Act 1975, de facto couples have similar property rights to married couples. A good indication that you may qualify for a property settlement is if at least one of the following applies to you:
- the relationship lasted at least two years;
- there is a child from the relationship; and/or
- significant contributions were made by one party, and failing to make an order would cause serious injustice
If you meet the requirements, you may be entitled to negotiate or, if necessary, file an application with the Federal Circuit and Family Court of Australia for property settlement. Items considered in a property settlement include all assets and liabilities of both parties, such as, the family home, vehicles, savings, investments and superannuation.
Can we separate and still live in the same house?
Yes, and in the current housing market, it is more common than many people realise. Separation is a factual state, not a physical one. You can be legally separated while continuing to share a home, particularly while a property settlement is being worked through.
Living under the same roof does not invalidate your separation, but it does mean you may need to provide additional evidence that the separation is genuine if the matter goes to court. This might include evidence that you sleep separately, have divided finances, and have told friends and family that the relationship has ended.
What are the time limits?
Many people are caught off guard by time limits for bringing an application before a Court if they cannot agree to a proper settlement between themselves or through mediation. Once a de facto relationship ends, you have two years to apply for a property settlement. After that, you will need the court’s permission to proceed, and that is not guaranteed.
Do not assume there is time to sort it out later. The two-year clock starts from the date of separation, not the date you physically separate your living arrangements.
How is property divided?
The court follows a four-step process:
- Identifying and valuing all assets and liabilities of both parties;
- Consider each party’s financial and non-financial contributions at the commencement and during the relationship, also post-separation. Consideration also includes whether any family violence occurred during the relationship.
- Assessing the current and future circumstances of each party, including income, health, age and care of children, also the considerations of family violence during or post-separation; and
- Making any adjustments to achieve a fair and equitable outcome for both parties.
Non-financial contributions include caring for children, maintaining the home or supporting a partner’s career.
How do we formalise the settlement?
There are two main options. A Binding Financial Agreement sets out how assets will be divided and does not require court involvement, though both parties must obtain independent legal advice and provide each other with full financial disclosure of all financial dealings. Consent Orders are court orders that reflect an agreement reached between the parties and are legally binding once approved and may be enforced by the Court if one party renege or fails to act in accordance with the Orders.
Informal arrangements are not legally enforceable. If circumstances change or one party does not follow through, you have limited recourse without a formal order in place.
Need advice on a de facto property settlement?
Whether you are just separating or have been trying to work things out for months, getting legal advice early can protect your entitlements and avoid costly disputes down the track.
Call our team on 1300 529 444 for 24/7 legal assistance, or visit fourtreelawyers.com.au.
This article is intended as general information only and does not constitute legal advice. For advice specific to your circumstances, please contact a qualified family lawyer at Fourtree Lawyers.