Couples who have ended a de facto relationship, now called a domestic relationship
may, in certain circumstances, be entitled to bring an application for a property
order.
De Facto property laws differ depending on when parties break up. If parties separated
before 1 March 2009 they fall under the “old system”. Those who separated after
1 March 2009 fall under the Family Law Act and are treated as if they were married.
It is possible that if parties separate before 1 March 2009 that they may “opt into”
the new system.
A claim has to made within two years of the relationship coming to an end for a
property or a maintenance claim.
A de facto relationship is defined as:
1. where the parties are not married;
2. where the parties are not related by family; and
3. where the parties live together on a genuine domestic basis.
The relationship can be between same sex couples or heterosexual couples. To decide
whether parties are a couple the courts will look at:
All of the above are looked at together to determine whether a de facto relationship
exists.
Under the new law, for there to be a property claim parties will need to show that:
1. the relationship lasted two years; or
2. there is a child of the relationship; or
3. the party applying to the court made substantial contributions to the relationship;
or
4. there would be a serious injustice if the court did not make an Order; or
5. the relationship is registered under State or Territory Law.
The new laws apply to couples whose relationship has a geographical connection with
New South Wales, Victoria, Tasmania, Queensland, Australia Capital Territory, the
Northern Territory or Norfolk Island.
If a de facto property claim is brought under new legislation the Court is involved
in a four step process in dealing with property settlements.
When parties separate they need to divide the property that they have accumulated
during the marriage. Property includes amongst other things:
When deciding on a fair property split a good family lawyer mimics what a Family
Court would do. This involves a four step process:
Firstly what are the parties assets, liabilities and financial resources?
Here parties need to make a list of all the assets and any liabilities and financial
resources whether in one party’s name or in joint names. This makes up what is known
as the matrimonial pool. These items can be given values that the parties agree
to or if they can’t agree then sworn valuations will have to be obtained.
Secondly, how did the parties acquire those assets, liabilities and financial
resources?
Here the Court looks at the various types of contributions i.e. how the matrimonial
pool was acquired. The Court looks at financial contributions (who earned money),
initial contributions (what each party brought into the relationship), non-financial
contributions (such as renovating the house), parent and homemaker contributions
(cooking, cleaning, shopping and parenting) and third party contributions (where
parties received compensation payouts, gifts from family etc)
Thirdly, what’s the future like for the parties?
Here the Court considers what further adjustment should be made taking into account
parties’ health, earning capacity, whether they are looking after children etc.
Fourthly, what will be just and equitable in the circumstances?
Before the Court can make a division of assets they have to be satisfied that the
division is fair in the circumstances of the relationship.
Parties should always try to resolve their matter by agreement. If they can it needs
to be formalised by either entering into Consent Orders or a Binding Financial Agreement.
An application for property settlement can be made immediately following separation.
Our aim is to negotiate property settlements without the need to go to court. This
will be a considerable saving in both time and cost not to mention the lower stress
levels for all involved. Don’t forget the only type of property settlement that
is binding and enforceable is one that is formalised by either Consent Orders or
Binding Financial Agreement.
Consent Orders and Binding Financial Agreements both result in stamp duties being
waived on the transfer of property and cars to the other partner.
If parties are unable to reach agreement one or the other of them will issue an
application to Court. The other party will need to file a response. The parties
will then attend a conciliation Conference, which is an occasion when the Registrar
and the lawyers assist the parties to make a real effort to settle the matter. Matters
often settle at this time or shortly after.
If the conference does not result in a settlement the Registrar will give directions
for what else needs to be done to progress the matter to a trial.
If parties separated before 1 March 2009 then a claim is brought under the Property
(Relationships) Act. The relationship must have lasted for two years in New South
Wales. But if there is a child of the relationship under 18 or where one of the
parties made a substantial contribution the Court can make an order even if the
relationship did not last for two years.
Proceedings will be brought in either the Local Court, District Court or Supreme
Court depending on the size of the asset pool.
The Court in determining a division of the assets will look at the assets, liabilities
and financial resources and each party’s contributions.
Proceedings for a property settlement claim have to be made within two years of
the parties’ relationship having come to an end.
If parties to a de facto relationship reach agreement under the old system they
can enter into a Financial Agreement or a Termination Agreement. They will both
need to seek independent legal advice before entering into the Agreement.
Children and parenting issues for de facto couples are dealt with as for married
couples under our law. This is the position whether one separated before or after
1 March 2009.
For more detailed information please read under the section of Parenting Arrangements
for Children and Child Support.
Where to now?
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