As the average Australian family has changed over the last few decades, so too has the legal definition for spousal relationships. Today, we have families with both heterosexual or same-sex non-married couples entitled to many of the same rights when it comes to matters regarding Family Law such as maintenance and the division of property. But simply living together with someone does not automatically mean you’re in a de facto relationship.
What Is A De Facto Relationship?
The Family Law Act describes a de facto relationship as when two people of any gender live together as a genuine domestic couple but are not related by family or married to each other.
Under the Family Law Act, you could be considered as being in a de facto relationship even if one person is still legally married to another third party at the same time. It is also important to note that in some cases a person could even be in multiple de facto relationships simultaneously. And the gender of each partner in a relationship is not a relevant consideration, because the law specifically states de facto relationships can exist between people of different or the same sex.
So because there really isn’t a one-size-fits-all definition for this legal term, the de facto status of a relationship can sometimes be in dispute. In these cases, the court is required to make a legal determination by looking at all circumstances of their relationship. This includes:
- Relationship length
- Living arrangements
- Financial dependence
- Sexual intimacy
- Parenting children
- Life commitment
- Relationship perception
- Property ownership
- Relationship registration
What Is A Property Order?
A property order is the division of assets and liabilities made by the courts following the breakdown of a relationship. Property orders can either come from an agreement made between each party called consent orders or they can be the result of a hearing or trial in Family Court.
Despite being called a property order which relates to the division of assets, they can also include requirements regarding payment of spousal or de facto maintenance. And once property orders have been made, each party is legally required to follow them.
So it’s always a good idea to seek legal advice as soon as possible after any type of separation, especially before signing any agreements, disposing of assets, or transferring of debts. Because there can often be any number of long-term consequences of a relationship breakdown, which may be both expected and unexpected.
Do Property Orders Apply To De Facto Relationships?
If your relationship meets the requirements to be defined as de facto, you and your ex-partner both have a legal right to a percentage of the property pool via the property settlement process. Basically, the legal steps involved for appropriately calculating the division of assets are the same for the breakdown of de facto relationships as divorce property settlement for married couples.
Separating de facto couples have access to most of the same legal systems, except the property settlement time limit requires settlement to be completed within 2 years from the date of de facto relationship breakdown. Otherwise, they can also seek court orders regarding parenting, maintenance, and child support.
While some de facto couples draw up financial agreements before or sometimes during their relationship, there are also options available for property settlement after separation. For those situations without any prior financial agreements, couples should first attempt negotiating the terms of their separation through mediation. If both parties come to an amicable agreement through mediation regarding the division of their assets and liabilities, everything can then be formalised by applying to the court for consent orders.
When an agreement is unable to be reached, either party from the separating de facto relationship can then make an application for property orders under the Family Law Act. As long as it’s within the property settlement time limit of 2 years after separation, de facto property orders can then be made on their behalf by either Family Court or Federal Circuit Court.
What Is Considered Property In A De Facto Relationship?
While some de facto couples are able to put their differences aside and come to an amicable agreement regarding the division of their assets, many others need the Courts to decide. And when it comes to what will be included during the Property Settlement Process, the court may consider any of the following as part of the property pool:
- Bank accounts
- Real estate holdings
- Business assets
- Investments & shares
- Personal property like cars, boats, jewellery, art, & more
- Superannuation
- Debts & liabilities
- & more
There are no set formulas to ascertain who receives each type of asset, nor what percentage goes to whom. So it will depend on the circumstances of your de facto relationship. Because every situation is completely unique, the Family Court will ultimately assess all property in the settlement process individually regarding the specific circumstances of each relationship.
It’s also important to be aware that it doesn’t matter when assets were obtained or which party is the legal owner. All assets are generally considered as a product of the relationship by the Family Court and thus will be included in the property pool. The courts may also take into consideration any significant contributions to property of the relationship, both financial and otherwise, as well as any grave injustices or significant financial disadvantages.
All of this means that your entitlements at settlement will almost certainly be completely unique and unlike anyone else’s. This explains why it is so important to seek legal advice from family law property settlement experts before making significant decisions like entering into an agreement.
How Can A Lawyer Help With A De Facto Property Order?
If you’re either currently, recently, or will soon be going through a de facto property settlement after separation, it’s crucial to ensure you’re properly informed regarding all of the legal implications that may come with it. Speaking with a family law expert can provide you with some independent legal advice which applies to your specific situation and help you understand all of your legal rights and responsibilities.
A lawyer can also help you and your ex-partner reach an agreement regarding property division through alternative dispute resolution which is outside of the court system. As a result, your family law dispute regarding de facto relationship property entitlements could be resolved successfully much faster, cheaper, and easier.
If you have an issue regarding de facto relationships, come and talk to one of our family law property settlement experts at AJB today. We’ll provide you with tailored advice to suit your specific needs and help you decide everything regarding making a property claim. By focussing on your needs and entitlements, we can help you close this chapter of your life so you can move on to the next one.
