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De facto Property Matters

For couples who separate after 1 March 2009 de facto property matters are dealt with under the Family Law Act 1975 as amended.

Pursuant to the legislation, the same considerations and laws apply to de facto property matters as people who were married.

A de facto relationship is defined in the legislation as follows:-

“A person is in a de facto relationship with another person if;-

  • The persons are not legally married to each other;
  • The persons are not related by family; and
  • Having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic relationship.”

In deciding whether or not parties have a genuine domestic relationship, the court examines the duration of the relationship, the nature and extent of common residence, whether a sexual relationship exists, the degree of financial dependence or interdependence and any arrangements for financial support, ownership use and acquisition of property, degree of mutual commitments, whether the relationship is or was registered, the arrangements for the care and support of children and the reputation and public aspects of the relationship.

The definition of a de facto relationship does not exclude homosexual relationships.

The court must then establish if jurisdiction and financial cause exist. Once we have done so proceedings may be filed or consent orders may be filed in the Family Court of Australia or the Federal Circuit Court.

As with married couples, de facto couples may:-

  • Negotiate and file consent orders.
  • Litigate through the courts.

De facto couples are entitled to make application for spousal maintenance as well as property division.

Assets of the relationship are those assets which accumulate during the relationship. In some circumstances assets held prior to commencement of the relationship and retained subsequent to the end of the relationship are also included as assets of that relationship, particularly in the case of long term relationships.

Once the asset pool has been ascertained, and we note that the asset pool includes superannuation entitlements for both parties, the court follows a process which includes:-

  • Assessing the contributions each party made at the commencement of the relationship.
  • Assessing contributions that each party made during the course of the relationship, being financial and non-financial contributions and direct and indirect contributions.
  • Examining the future needs of the parties.

In the eyes of the court non-financial contributions by a parent such as caring for children, housework, renovations and landscaping, are usually considered to be equivalent to financial contributions.

The court may also take into account negative contributions to the welfare of the family such as wastage of assets through gambling.

In assessing the financial entitlements of parties, the parties and the Courts are bound by the legislation. Pursuant to that legislation so long as all relevant factors are considered the Judge has a discretion in deciding how the property is to be divided. Each Judge will give a slightly different outcome, dependent on the weight they place on various factors.

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