Answers to frequent asked questions about de facto property settelment
Except for unmarried couples in Western Australia, de facto couples can use the Family Law Courts to resolve property disputes when their relationship breaks down. Those laws apply if the relationship broke down after 1 March 2009 (or 1 July 2010 if the relationship broke down in South Australia).
What can a Family Law Court do?
De facto couples can ask a Family Law Court to make a property settlement. That includes dividing all property, including superannuation interests, owned together or separately by the parties.
In appropriate cases, the court might also require one party to support the other after the relationship ends. That might be done by ordering a lump sum payment or periodic payments, or by giving the party in need of support a larger share of the property to offset that need.
Am I entitled to apply for a property order?
Unmarried couples in a de facto relationship can apply for a property order if any of the following are true:
- The relationship lasted for at least two years before it broke down.
- The de facto parties had a child together.
- One party made substantial contributions to the relationship (either financial contributions or service as a homemaker) and it would be seriously unjust not to make a property settlement.
- The de facto relationship was registered in the state or territory where the application for a property order is filed.
- Couples in a de facto relationship can be either same sex or opposite sex. A de facto relationship can exist even if one of the parties is married to someone else.
Was I in a de facto relationship?
Two people are in a de facto relationship when they live together on a genuine domestic basis. That means that they live together as if they were married. Evidence of a genuine domestic basis for the relationship includes:
- How long the parties were in a relationship.
- Whether the parties were living and sleeping together.
- Whether the parties shared property and/or expenses.
- Whether one party depended financially upon the other.
- Whether the parties made a mutual commitment to a shared life.
- Whether the parties held themselves out to the public as being in a relationship.
- Whether the parties shared responsibility for raising children they had together.
Can I take action to avoid having the court enter a property order?
If you do not want to be covered by de facto relationship laws governing property settlements in Family Law Court, you can opt to make your own agreement that will operate in the event your relationship breaks down. These are called binding financial agreements. You need to obtain legal advice, however, to enter into an agreement that is binding on the court.