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When a relationship comes to an end, working out who gets what can be tricky. If you were in a de-facto relationship, you might be concerned about certain property rights, as well as what happens to any children you have once you have separated from your partner. Under the Family Law Act, all de-facto couples have the same rights as married couples when it comes to considering property settlements. Same-sex couples are also included in the definition of de-facto couples under the Act.

Do the laws apply to me?

With de-facto relationships, there are certain criteria your relationship will need to meet to under the Act to be able to apply for a property settlement. These include:

  • whether your relationship lasted for at least two years in total;
  • whether you have any children with your de-facto partner;
  • whether you have made a substantial contribution to the property or finances of your partner;
  • whether you registered the relationship in a State or Territory; and
  • that you need to have lived at least 1/3 of your relationship in a State or Territory where the laws apply. This is currently true for all Australian states and territories except for Western Australia, although they do have similar laws.

The court will also consider that you must have been living together on a genuine domestic basis and whether you have a sexual relationship. You can also be in a de facto relationship even if you or your partner are legally married to someone else or are in a de-facto relationship with someone else. You can bring an application for property settlement within two years of your relationship ending.

How do we separate property?

You can come to an agreement with your partner about how to distribute your property without needing to go to Court. You can then register your agreement with the Court, and the Court makes what is called Consent Orders. Once you have both agreed to these, and they have been registered, you can’t change your mind later. You could also enter into a Binding Financial Agreement where you can agree on how you will manage your separation.

If you do not have an agreement in place and can’t negotiate together for whatever reason, the Court will step in to ensure a fair outcome. They will consider what each of you owned before the relationship, your current assets and the contributions you both made over the period of the relationship. This will include financial contributions like wages or improvements to your house, gifts, inheritances and payment of household bills.

They will also look at your non-financial contributions, which can be things like cleaning the house, looking after the children and cooking for the family. Once they have assessed these aspects, they will look at your future needs, such as income, how you will care for any children and any other financial resources you have available to you. The Court will then decide how it will split everything and make orders to that effect.

LegalVision cannot provide legal assistance with this topic. We recommend you contact your local law society.


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