an application for de facto property settlement
There are a number of property settlement options for de facto couples. Filing for property orders with the courts can be expensive, time consuming and stressful. For this reason it is preferable to try to reach an agreement outside of court.
Defacto relationships and financial agreements
Some de facto couples choose to draw up domestic relationship agreements before or during their relationship, which are similar to the well-known “pre nuptial” agreement. In a similar way, separation agreements can be drawn up in anticipation of, or immediately following a relationship breakdown.
For these agreements to be legally binding, both parties must have signed the agreement and have received independent legal and financial advice before signing.
In the case that there is a dispute, it is always advisable to enter into mediation. If an agreement can be made, it is then possible to apply for Consent Orders through the Court, which formalises the agreement. This is dependent on whether the court is satisfied that the agreement is “just and equitable” to both parties, and that both parties have sought independent legal advice.
If an agreement cannot be reached, you can apply for property orders.
For situations where there has been no prior financial agreement, parties of a de facto relationship or a close domestic relationship can apply for property orders.
Applications for property orders must be made within 2 years of the end of a relationship. Applications are made to the Supreme Court (for large claims), District Court (up to $250 000) or the Local Court (up to $60 000).
The decision is then made through a court hearing. Both parties are expected to fully disclose their respective financial circumstances. A failure to make proper disclosure of a relevant matter is taken very seriously.
The Court will ascertain the net asset pool of both parties.
The net asset pool is the total value of all the assets owned by either or both parties. The net asset pool includes anything acquired before or during the relationship, as well as after separation.
In ascertaining the net asset pool, the Court will also consider other financial resources over which a party has influence, control or prospective entitlements.
Ascertaining the net asset pool can be highly complicated. Accurate valuation of assets requires that many factors are taken into consideration, such as issues regarding taxation, stamp duties, and the appreciation or depreciation of asset values.
The Court will assess the contributions from both parties (both financial and non-financial).
There are many types of contributions that may have been made by either spouse. The Court considers all of the following:
- financial contributions
- non-financial contributions (as a homemaker or primary carer of children)
- gifts, bonuses and inheritance
- initial contributions (assets attained before marriage)
- The Court will assess the future needs of both parties:
- The Court takes into account many factors when deciding on the future needs of both parties. These include:
- Age and health
- Capacity to earn money
- The property and assets of each party
- New relationships (and new financial circumstances)
- Future parenting responsibilities (care and support)
- The Court will consider the practical effect of the proposed property settlement, and whether it is “just and equitable” to both parties. The decision is made taking into account all of these factors.
- Generally, superannuation is not included in a property settlement between de facto couples. However, a Court is likely to take it into account when assessing the financial resources of each party.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.