Division of property of separated de facto couples

Division of property of separated de facto couples is governed by the Property (Relationships) Act 1984 ('the Act') or by general common law principles.

Conditions for determination under 'the Act'

You or your de facto partner may seek to have the property of the relationship divided under the Act provided that:-

• you have lived together in a de facto relationship for not less than two years.'De facto relationship' means that you have lived together as husband and wife on a bona fide domestic basis although not married; or
• you and your de facto partner have a child; or
• one of you has made a substantial contribution to the property of the relationship or has the care and control of a child of the other party, and the failure to make any Order would result in serious injustice.

An Application must be filed within two years of the day on which you ceased to live together.  If two years have passed, in limited circumstances, the Court may grant special leave to file an Application out of time.

If your relationship does not fall within the above requirements, or the two year period has expired, and special leave is not granted, a division of the property of the relationship may be possible under common law as outlined below.

The Court will consider the:

• financial and non-financial contributions made by each of you to the acquisition, conservation or improvement of the property (whether held jointly or solely by either partner);
• financial resources of each of you;
• Contributions made, including any contribution made in the capacity of homemaker and parent, by either of you to the welfare of the other partner or any children of the family. Less weight will be placed on this in a de facto matter than in a marriage case.

An Application can be made to the Local Court, District Court or Supreme Court.

Under Common Law

If a relationship is not covered by the Act, or the period for bringing an Application under the Act has expired, either party can apply to have the property of the relationship divided under common law.  For example, common law could remedy a situation where:

• property can be shown to be held in trust by one party for the other because the other has made a financial contribution;
• it was intended by the parties that property would be held on trust by one of the parties for the other;
• it would be unconscionable for a party to claim legal entitlement to property without recognising the contributions made by the other party.

Cohabitation and Separation Agreements

You can enter into an Agreement before, during or after a de facto relationship as to how property is to be divided between you and your de facto partner.  The Court is restricted in making Orders contrary to the Agreement if:-

• The Agreement is in writing and signed;
• Each party obtains independent legal advice before entering into the Agreement.  Each advising solicitor must provide a certificate verifying the nature of the advice given.

If the formal requirements are not met, the Court is still required to have regard to the Agreement when making Orders.