Dividing Property After a De Facto Relationship Ends: What You Need to Know

Were you in a De Facto Relationship?

Your relationship may be a de facto relationship if you and your partner are not married but you lived together as a couple on a genuine domestic basis.

The law considers all the circumstances of your relationship, including

• How long you were together
• Whether you lived in the same home
• If you shared finances or owned property together
• Whether you had a sexual relationship
• If you were committed to a shared life
• Whether you had children together
• How others viewed your relationship (e.g., family, friends, community)
• Whether your relationship is or was legally registered

Each situation is different, and sometimes people disagree on whether they were in a de facto relationship. If you are unsure, a Family Lawyer can help assess your situation and explain your rights.

Are you Entitled to a Property Division?

You may be entitled to a property division if you were in a de facto relationship and at least one of additional conditions is met:

1. You were in the de facto relationship for at least two (2) years,
2. You and your partner have a child together,
3. You made substantial contributions and not getting a share of the property would be seriously unjust, or
4. Your relationship was legally registered.

Length of relationship

The length of your relationship is measured by the duration of living together as a couple on a genuine domestic basis. This is usually the duration during which you lived in the same home, however this is not always the case.

Child

This may include a child who has been adopted, born as a result of artificial conception procedures or born under surrogacy arrangements.

Substantial contributions and serious injustice

Whether or not your relationship satisfies this requirement is dependent on the facts and circumstances of your relationship. Substantial contributions include financial, non-financial and homemaker/parent contributions, however financial contributions are usually the most persuasive type of contributions to rely on following the breakdown of a shorter relationship, where the dollar figures are tangible, can be demonstrated by documents such as bank account statements and have not eroded over a long period of time.

A Family Lawyer can help assess if you may be able to satisfy this condition.

Registered relationships

Your relationship may be legally registered if you “opted in” and took steps to complete the registration through relevant government agencies, such as Services NSW.

How Is Property Divided?

If you were in a de facto relationship and meet at least one of the additional conditions, you may be entitled to a property division.

When deciding what percentage of the available assets each party is entitled to, the Court adopts a four-step process. Your Family Lawyer will provide you with advice in relation to your entitlements using the same process as follows:

If you and your ex agree on how to divide property, it is important you formalise your agreement to avoid possible disputes in the future. A Family Lawyer can apply for Consent Orders on your behalf or draft a Financial Agreement for you.

If you cannot agree, a Family Lawyer can help you negotiate a settlement or apply to the Court for a decision.

What If You Are Not Entitled to a Property Division?

If you were not in a de facto relationship and/or do not meet any of the additional conditions, you may not be strictly entitled to a property division under the Family Law Act, however there may be alternative options available to you.

If you and your ex own property together, you will continue to own that property together. You may need to work out a private agreement about what will happen to that property. For example, if you own a house together, you will need to decide if you will:

• Sell the property and divide the proceeds,
• Buy out your ex’s share (or vice versa), or
• Keep the property as joint owners (which can be complicated and result in possible disputes in the future).

A Family Lawyer can help you understand your options and draft a private agreement.

Time Limit for Finalising your Property Division

If you were in a de facto relationship, it is important you finalise your property division within two (2) years of separation. If you have not finalised your property division and need to apply to the Court for a decision after then, you will need your ex’s agreement to make the application or you will need special permission from the Court – which is not always granted.

If you are considering separation or have separated from your de facto partner, it is important you seek advice from a Family Lawyer as soon as possible.

Final Thoughts

If you have separated or are considering separating from a de facto partner, it is important to understand your entitlements, options and the property division process. Every case is different, so getting the right legal advice is key to ensuring a fair and stress-free resolution.