Family law
De facto property settlement lawyers in Melbourne
When a de facto relationship ends, the division of property follows much the same path as it does for a married couple, once the parties establish that the relationship existed.
Whether a de facto relationship existed is the first question, and the parties can dispute it.
The answer depends on the circumstances of the relationship as a whole. Only after the parties establish the relationship does the division of property follow.
Mazzeo Lawyers advises de facto partners in Melbourne and throughout Victoria on whether the relationship meets the legal definition, on the time limit that applies, and on how the parties reach a property settlement. Advice at the outset covers both questions: the relationship and the property.
The threshold
Is it a de facto relationship?
Under the Family Law Act 1975 (Cth), two people are in a de facto relationship if they are not married to each other, are not related by family, and have a relationship as a couple living together on a genuine domestic basis. The definition does not require the couple to share one home at all times, and it applies regardless of gender.
A court judges the question on the circumstances of the relationship as a whole. The matters it commonly considers include the duration of the relationship and whether the parties lived together. Financial arrangements between them count, as do how they owned or used property, and the degree of mutual commitment to a shared life. So do the care and support of children and how the parties presented the relationship to others. No single factor decides the question.
A property application by a former de facto partner also needs one of several further conditions. The most common are that the relationship lasted at least two years, that there is a child of the relationship, or that one party made substantial contributions and serious injustice would follow if the court made no order. A relationship registered under a State or Territory scheme also qualifies.
Dividing property
How property is divided after a de facto separation
Once the parties establish the de facto relationship, the court approaches property in the same way as for a married couple. The parties identify and value the asset pool, the court assesses each party’s contributions and future needs, and it asks whether the overall outcome is just and equitable. No rule gives each party half.
The asset pool
The pool takes in property either party holds in joint or sole names: the home, savings, shares, vehicles, interests in a business or trust, as well as debts. Superannuation forms part of the pool.
Contributions
Contributions include money brought in at the start or earned during the relationship, as well as unpaid work on property or in a business. They also include the years spent as homemaker or parent.
Future needs
Future needs cover age and health, the care of children, as well as income and capacity to earn. Any other circumstance that bears on what each party will need after separation also counts.
A just and equitable result
The court asks whether the overall division is just and equitable in the circumstances. That measure also tests a negotiated settlement before the parties formalise it.
Time limits
Time limits and financial agreements
01
The two-year limit
A former de facto partner generally has two years from the date of separation to apply to the court for a property settlement. The court may grant leave to apply after that date in some circumstances, but leave is not automatic, and the parties can contest the date of separation itself.
02
Separation and its date
Separation is a question of fact. It can occur under one roof, and the parties may need to establish the date the relationship ended from their conduct, since no single event marks it.
03
Financial agreements
De facto partners can enter into a financial agreement before, during or after the relationship, setting out how they will divide property if it ends. The agreement binds them only if it meets particular requirements, including that each party received independent legal advice before signing.
04
Consent orders
After separation, the parties formalise an agreement through consent orders made by the court or through a financial agreement. Until they do, the agreement binds neither of them.
Our approach
How Mazzeo Lawyers approaches de facto matters
Mazzeo Lawyers is a Melbourne litigation practice that acts in family law matters before the Federal Circuit and Family Court of Australia. Every matter the firm acts in receives the time and personal attention of an experienced lawyer. We take the time to understand your situation before advising on a course of action, and where the parties dispute the existence or the dates of the relationship, those questions come first.
All enquiries are handled in strict confidence. An initial conversation does not commit you to anything. Legal costs depend on the nature, complexity and scope of the matter, and we explain the applicable fee arrangements and provide costs information in accordance with our legal obligations before commencing substantive work.
The Family Law page sets out the firm’s wider family law work, including parenting matters.
De facto questions
Common questions about de facto property settlements
Do de facto partners have the same property rights as married couples?
Once the parties establish a de facto relationship and meet one of the further conditions, the court applies the same approach to dividing property as it does for a married couple. The main differences are the need to prove the relationship and the two-year limit, which runs from separation rather than from a divorce.
We did not live together full time. Can it still be a de facto relationship?
It can. Living together is one of the matters the court considers, not a precondition on its own. The court looks at the relationship as a whole, including financial arrangements, commitment to a shared life and how the parties presented the relationship to others.
Does the two-year limit apply if we have a child together?
A child of the relationship is one of the conditions that allows a property application whatever the length of the relationship. The two-year period to apply after separation still applies, and leave to apply out of time is not automatic.
Can I make a claim against my former partner’s superannuation?
Superannuation forms part of the property pool in a de facto settlement. The parties can split it between them or balance it against other assets, depending on the overall division.
What if my former partner denies that we were in a de facto relationship?
The court decides the question on evidence of the relationship as a whole: shared residence, joint finances, property in joint names, correspondence, the care of children as well as how the parties presented the relationship to family, friends or institutions. Where one party denies the relationship, assembling that evidence is the first step.
Contact Mazzeo Lawyers
Discuss your de facto matter
If you would like to understand your position after a de facto separation, arrange a confidential discussion about your matter. An initial conversation does not commit you to anything.
