How to Separate - De Facto Separation


1. Do you satisfy the requirements for the Act to apply?

There are strict requirements that you must satisfy before you can even ask the Court to consider making an order for property settlement after you separate from your de facto partner.

These requirements are:

You and your partner were in a de facto relationship and that relationship has ended;

  • Your de facto relationship was for at least 2 years; or
  • If your de facto relationship was less than 2 years then:
    • The person who wants an order has made a substantial contribution; and
    • To not make an order would result in serious injustice to the person applying for an order;
  • There is a child of the de facto relationship; or
  • The de facto relationship is registered under a prescribed law of a State or Territory;

That you and your de facto partner were living in Victoria, New South Wales, Queensland, Australian Capital Territory, Northern Territory, South Australia or Tasmania (“the participating States”) when you separated.

You or your de facto partner were living in Victoria or another participating State when Court proceedings were commenced for an order.

You and your partner lived at least a 1/3 of your de facto relationship in Victoria or any other participating State;

The person who has commenced proceedings for an order has made a substantial contribution in relation to the de facto relationship.

If your relationship meets the 3 requirements set out above then you may be able to obtain an order for property settlement pursuant to the Act.

If you do not meet the 3 requirements then you cannot ask the Court to make an order for property settlement pursuant to the Act. If the Act does not apply then you may have a right to seek a property settlement pursuant to the Relationships Act 2008 (Victoria). This was the law that applied to de facto property settlements before the Act commenced on 1 March 2009.

2. What Property Is To Be Divided?

If you can ask for an order for property settlement pursuant to the Act then the next step involves working out the value of what you and your partner own and what you owe money on. This includes:

  • The home;
  • Investment properties;
  • Cars;
  • Investments like share portfolios;
  • Funds in bank accounts;
  • Business operated by you and/or your partner;
  • Superannuation;
  • Mortgages;
  • Personal loans.

Working out what you and your partner has to divide can easily become complicated as there may be a company or trust structures or interests in businesses with other people.

It is very important to properly work out what property is to be divided between you and your partner.

3. How Did You And Your Partner Acquire What You Have?

After it is worked out what you and your partner have to divide, the next step is to work out how did you and your partner acquire it. This includes assessing:

  • What each of you owned when you first started living together?
  • How did you and your partner buy property when you were together?
  • Who paid the mortgage and other expenses for the home and/or investment properties?
  • Who was responsible for caring for the home and the family?
  • Did either you or your partner receive any gifts or inheritances?
  • How long were you and partner together?

Your and your partner’s contribution is then usually expressed as a percentage such as 55% to you and 45% to your partner. It is important to note that there is NOT an automatic assessment that you and your partner’s property is to be divided equally (50% each) just because you and your partner were in a de facto relationship.

4. Are There Any Other Factors To Take In Account?

The next step is to see if there are any other factors that should be taken into account. These factors include:

  • Who has the care of any children of the relationship under the age of 18;
  • The income of you and your partner;
  • The heath of you and your partner;
  • The amount of child support paid by you or your partner.

These factors may change the percentage on how you and your partner’s property is to be divided.

For example:

If you earn a yearly income of $160,000 and your partner earns a yearly income of $ 35,000 then this disparity in incomes will most likely result in an adjustment in favour of your partner of 10%. Therefore, if the assessment of how your and your partner’s property has been acquired is 45%/55% in favour of you then the adjustment for other factors will change the percentage division to 55%/45% in favour of your partner.

5. Is The Proposed Division Just And Equitable?

The final step is to stand back and look at the proposed division of property to see if it is just and equitable. Usually, the proposed division will be just and equitable after steps 2, 3 and 4 however, it is important to know that this is not always the case.

WHERE TO NEXT?

Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?

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