Subject to certain threshold issues couples, including same sex couples, who have been living together on a “genuine domestic basis” are considered to be living in a de facto relationship and can make an application under the Family Law Act for a division of property between them.
Whether or not you have been living together on a genuine domestic basis will usually involve a combination of factors such as:
You cannot live in a de facto relationship if you are legally married to the other person.
Threshold issues to making a claim for property settlement
Although you may have been living in a de facto relationship there are further requirements you must meet before you can bring an application to the court for a de facto property settlement. They are:
What factors will a court consider?
How courts determine property settlements is governed by the Family Law Act 1975, in particular sections 90SM and 90SF. That legislation mandates that as a preliminary to making a property settlement order, the court must be satisfied that it is just and equitable (fair) to alter the existing property interests. In most cases where a couple has jointly owned property this initial requirement will be met however, particularly in short relationships where assets have not been merged the situation may be less clear cut.
If you ask a court how your property should be divided it will almost invariably following these steps:
A time limit applies to bringing an application for a de facto property settlement. That application must be commenced within two years of separation. That time limit can only be extended in very limited circumstances.
There is no substitute for specialised family law advice so if you have questions about separation or want to know your legal position please feel free to book a confidential appointment. We can assist you at all stages of the process, regardless of the path taken. Our lawyers provide advice based on the relevant facts and the individual needs of each client. No two cases or outcomes will be the same.
For answers to frequently asked questions about de facto property division please go to our FAQ page.