De Facto Separation
Separating from a de facto partner is one of the most stressful and emotional times for you, your partner and the children. The law surrounding what happens when you separate from your de facto partner is complex. The Family Law Act 1975 (Cth) governs de facto separations that occurred after 1 March 2009.
The questions that may arise from a separation include:
- Was I in a de facto relationship?
- Have we separated?
- What will the future living arrangements be for our children?
- Will I get to see our children in the future?
- What happens if there is family violence?
- Do I move out of the former relationship home?
- How will I pay for my future living expenses?
- How will our assets be divided?
- What happens with our superannuation entitlements?
- How will the future living costs for our children be met?
- What do we do if we have complicated business structures that include companies and trusts?
- What happens if we reach an agreement about how to divide our assets or the future care of our children?
- Do we need to go to Court?
In addition to the above questions, there are complicated requirements that need to be satisfied before court orders can be made as to how the assets are to be divided or whether spousal maintenance should be paid. If you have any questions about what to do after a de facto separation then it is best for you to obtain legal advice. We have a team of expert family lawyers who will help and guide you through the legal process.
De facto separation is the breakdown of a relationship. As there is no mechanism by which separation may be registered, partner have to swear under oath when separation took place and if disputed to rely on contemporaneous evidence such as emails, text messages to show when separation occurred. Separation is a factual event that stems from the intention of either or both parties to the de facto relationship and the actions taken pursuant to the intention.
Separation under one roof
The law recognises that separation can occur while parties are still living under the one roof. Therefore, you are not required to move out of the home you have shared in order to establish that you have separated. However, if you are going to continue to live separately under the same roof, it is important that you communicate your intention to separate to your de facto partner and keep appropriate records to document this.
If there is no written evidence and the parties continue to live under the same roof, then the following factors will be taken into account to show whether separation has occurred or not:
- Whether the parties share the same bedroom.
- Whether a sexual relationship exists.
- How the finances were organised during the de facto relationship and how they are after the alleged separation.
- How were the household chores organised during the de facto relationship and how they were after the alleged separation.
- Whether or not there was continued use of the belongings of the other following the alleged separation.
- Whether or not the parties present themselves as a couple to family and friends after the alleged separation.
- Whether or not the parties go for holidays together.
The date of separation in a de facto relationship is important for the purposes of initiating court proceedings for the enforcement of any rights for property adjustment arising from the de facto relationship. The time limit for initiating court proceedings is two years from the date of separation. If you do not institute court proceedings within two years of separating, you may be at risk of losing your right to a property adjustment. If you are time barred, you will have to seek court’s permission to initiate proceedings. The court may not grant the permission.
It is therefore, important to get timely advice about your rights and the time limits that apply in your case. Our family law solicitors at Armstrong Legal guide you as to your options and assist you in resolving your situation.
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.
The first requirement is that you and your partner were in a de facto relationship and that relationship has ended. To obtain property orders, you must also be able to show that:
- Your de facto relationship was for at least two years; or
- If your de facto relationship was less than two 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 when you separated.
- That you or your de facto partner were living in Victoria or another participating state when Court proceedings were commenced for an order.
- That you and your partner lived for at least one third of your de facto relationship in a participating state;
- That the person who has applied for an order has made a substantial contribution in relation to the de facto relationship.
If your relationship meets the 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 requirements then you cannot ask the Court to make an order for property settlement pursuant to the Family Law Act.
If the Family Law 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.
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?