According to the Australian Bureau of Statistics, the number of de facto couples in Australia has been rising since the early 2000s. As new types of families emerge, the law must respond accordingly to address their specific needs and circumstances. So then, how does a de facto couple undertake a property settlement?
Since 2009, separating couples in a defacto relationships have been covered by the same legal regime as all other married couples. Simply put, de facto couples follow the same four-step process that all other married couples must follow to produce a just and equitable property settlement in the eyes of the law (which you can read about here). As a result of these changes, de facto couples can split property, split superannuation and apply for spousal maintenance among a range of other benefits permitted by the Family Law Act.
So where is the problem then? Well, de facto couples face different challenges to married couples when separating. Before they can even get into the four-step process, a few questions must be answered first
Am I in a de facto relationship?
According to the law, two people are in a de facto relationship if they are not legally married and are not related but live together on a ‘genuine domestic basis’.
Some factors that may be considered to determine whether you are in a de facto relationship include:
It is important to note that a couple does not need to live together on a full-time basis to be considered a de facto couple. Living arrangements are only one factor considered by the court to determine whether the couple are together on a genuine domestic basis.
When did the relationship start?
Part of a property settlement is determining what assets each party held before, during and after the relationship. The exact start and end date of a de facto relationship can be difficult to ascertain. For this reason, it is important that you have a clear history of the relationship outlining when and why you believe the relationship began and ended at particular moments.
Do any other limitations apply?
Married couples are able to apply for a property settlement up to twelve months after their divorce is granted. In contrast, de facto couples may make a claim against their former partner up to two years from the date of separation. Ensure you are aware of this before you begin your matter.
If you have any doubts or concerns about a family law property settlement, access our resources below or contact us on 9688 6023 or email jfrank@franklegal.com.au to find out how these factors my impact your specific case.
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