A de-facto relationship is defined in section 4AA of the Family Law Act, and includes partners who:
… have a relationship as a couple, living together on a genuine domestic basis.
De-facto couples are those who are not married. So, what happens if they separate? Is the division of property viewed the same as married couples?
In order for the court to hear your application, the court will consider the following matters:
1. The relationship was for at least two years;
2. There is a child of the relationship;
3. The relationship is or was registered by law; or
4. Significant contributions were made by one party, and failure to issue an order would result in serious injustice.
You must also satisfy the court that:
1. You were in a genuine de facto relationship, which has broken down. This is evidenced by things like proof of the same address and sharing of living expenses;
2. You have a geographical connection to the jurisdiction (for example, you live in Queensland); and
3. Your relationship broke down after 1 March 2009.
If you think you satisfy these criteria, your application to the court is using the same forms that are used for married couples. As for what the court will decide, this depends entirely on your circumstances and there is no one answer, nor is there a 50/50 presumption. Typically, the decision is made following a four-step process:
1. Identify and value all assets and liabilities of both parties, to have a net ‘property pool’ dollar value;
2. Assess the financial and non-financial contributions of both parties, for example parenting, wage-earning and homemaking;
3. Consider the future needs of each party, for example the income earning capacity or who has the primary care of the children; and
4. Decide whether the proposed percentage division is just and equitable.
The dollar value will then tell you what you need to do – for example, if one party is awarded 60% of the pool, and the family home is worth 60% of the pool, it is reasonable for them to keep the family home. If the family home is valued at 80% of the pool, the family home may need to be sold.
De facto partner maintenance may also be payable in some circumstances. Typically, it can be ordered where one party cannot meet their own expenses, and the other party has capacity to. For example, where one party’s income exceeds their weekly expenses, and the others falls short, spousal maintenance may be payable. For more information, please contact our office to discuss.
It is important to note that there are time limits on these applications. For de facto couples, you must apply within two years of the relationship breakdown.
Written by Sarah Penfold.