What happens to your property rights if your de facto relationship breaks down?

Across all states in Australia, a de facto relationship is defined by the Family Law Act 1975 as a relationship where a couple lives together on a genuine domestic basis. To achieve this status, a couple would have to live together in a relationship for at least two years. In some cases, where children or joint property is involved, exceptions may be made but the general rule is two years. There are other various circumstances that also contribute to being considered in a de facto relationship. These range from financial dependency and property ownership to intimacy level. As one can imagine, many things are shared in a de facto relationship, including property. So, what happens to your joint property when a de facto relationship ends? Determining this is more complicated than it would be with a less serious relationship. 

How is de facto property settlement done?

In NSW, de facto relationships generally have most of the same rights as marriages, regardless of if it is a same-sex or heterosexual relationship. This means that each party falls under the protection of the Family Law Act 1975 and can take their matter to court if it cannot be settled amicably. There are three overall ways that you can settle your property:

1. By informal agreement – an agreement between you and your former partner that does not involve the court.
2. Through consent orders – an agreement that is formalised by the court.
3. Applying to the court for orders –  the court is able to order the division of any property you own, either together or separately.

What happens when you apply to court for a settlement order?

When you apply for a settlement from the court, the outcome is now out of your hands. One party can start court proceedings by filing an initiating application to ask the Family Court of Australia to make orders. 

The court will first determine whether it is ‘just and equitable’ to adjust the interests that each part has in the property. After this assessment is made, the value of the parties’ assets and liabilities must be ascertained. This is determined at the date of the property settlement regardless of if the parties have been separated for years. So, anything acquired, before, during or after separation will be counted, regardless of if it is owned separately or jointly. This process can become complicated as it also involves the disclosure of trust funds, business interests and self-managed superannuation funds.

The court will make a decision on the acquisition and maintenance of the assets based on several factors and under the provision of the Family Law Act 1975. The court will take into consideration these variables:

• Financial contributions of each party to the relationship such as salary earnings
• Indirect financial contributions of each party in the form of inheritances, gifts from families and unpaid work leave taken to improve the value of the property
• Non-financial contributions to the welfare of the family such as homemaking and caring for children (if children are involved)
• Assets of each party

In all cases, the future of each party must also be considered. These factors include:

• Age
• Health
• Earning ability of each party
• Whether one parent is the primary carer of the children of the relationship

Regarding all circumstances, the court will also determine whether it is ‘just and equitable’ to make a property settlement order. After this, a decision will then be made. It may result in a 50/50 split however, it is more common for one party to receive more than the other.

At Prominent Lawyers, our experts will assist you with your property settlement case by:

• Providing expert family law advice
• Obtaining all information relating to your property, assets and legal status of your de facto relationship
• Carefully developing and presenting a strong case for you
• Representing you in negotiations with your former partner and their representative
• Representing you in court 
• Attending to the transfer of your assets as part of the property settlement

We understand how mentally and emotionally draining property settlements of your de facto relationships can be. Our team of lawyers who are experts in the family law field will be able to support and guide you through the exhausting process. We will ensure that you reach a settlement that is fair and just to you.

Get in touch with us on 1800 77 66 46