De-Facto Separation

10 July 2019 | Children Property Separation & Divorce Working with your Lawyer

At the end of a de-facto relationship, you may need to divide assets and debts between yourself and your ex-partner prior to going your separate ways. If you do need to divide your assets and debts, it’s highly recommended that you hire a qualified lawyer from a reputable law firm to help you navigate the process. As experts in Family Law, MDV Family Lawyers can assist in all aspects of separation including de facto separation. 

What is a de-Facto relationship?

Under the Family Law Act, a de-facto relationship is defined as a relationship between any two persons who are living together on a genuine domestic basis. To be considered as a de-facto couple the persons involved can be of the same or opposite sex but cannot be legally married or related by family. A de-facto relationship will create rights and responsibilities for you and your partner similar to the rights and responsibilities of marriage.  

In order to determine if a couple is living together on a genuine domestic basis, courts will look at the following factors:

  • How long the couple has been together
  • Whether the relationship is/was sexual in nature
  • Whether the relationship is registered in an Australian state or territory
  • Financial dependency 
  • The degree of a mutual commitment to a shared life
  • Property ownership & use
  • Care and support of children
  • The public aspects of the relationship, such as reputation

What is an asset?

Assets can include things such as your family home, investment properties, shares, interest in a business and bank accounts and your superannuation.

What is a debt?

Debts can include bills, medical expenses, overdue invoices or anything else that will leave one or both parties out of pocket. 

What are my options during a de-facto separation?

During a de-facto separation, there are three ways to handle the situation:

  1. You and your former partner reach an agreement on how your property should be divided without any court involvement
  2. You and your former partner reach an agreement on how your property should be divided and formalise the agreement by applying for consent orders in the Family Court
  3. You and your partner realise that you can’t reach an agreement on how your property should be divided and lodge an application for financial orders. 

If you and your partner are experiencing issues or conflict trying to divide your debts and assets after a separation, we recommend contacting your local family law professional. As the largest law firm in Nowra and the greater Shoalhaven focusing on family law, MDV Family Lawyers is highly experienced in supporting clients through complex and often emotional separation cases.

Which court do I apply to?

In New South Wales you can apply to The Federal Circuit Court unless it’s a complex case, then the application will need to be made to the Family Court.  Complex cases include:

  • International child abduction or relocation
  • Serious allegations of sexual or physical abuse of a child or children
  • Serious controlling family violence 
  • Specialised medical procedures for a child or children
  • Other complex questions of law

If you are having issues regarding children or property or you’re currently involved in a complex case, it’s best to hire a family law professional to help you navigate the system and guide you towards a positive resolution. 

How do I make an application?

In the event of a de-facto separation when an agreement between both parties cannot be reached, an application will need to be made to either the Family Court  or the Federal Circuit Court. 

To start a matter you will need to prepare an application and any other supporting documentation in order to ask the Federal Circuit Court of Australia or the Family Court of Australia to make orders. 

Once your application and supporting documentation has been completed, you then need to submit them to the Court for filing. If your documents are accepted you will be given a court date. 

How does a court decide how to divide assets and debts?

The way in which assets and debts are divided between parties depends on individual circumstances. As there is no formula used to divide property, a decision is reached after all evidence has been heard and the judicial officer decides what is just and equitable based on the unique factors of your case. 

The Family Law Act 1975 sets out the general principles the court considers when deciding financial disputes after the breakdown of a marriage or de-facto relationship. The general principles are the same, regardless of whether the parties were in a marriage or de-facto relationship. These are:

  • Looking at indirect financial contributions by each party.
  • This can include things such as inheritances and gifts from families.
  • Looking at your assets and debts to assess their worth
  • Looking at the direct financial contributions made by both parties during the time of the relationship such as wage and salary earnings.
  • Looking at indirect financial contributions by each party. This can include things such as inheritances and gifts from families.
  • Looking at the non-financial contributions such as caring for children
  • Looking at future requirements, a court will take things like age, health, financial resources, care of children and the ability to earn. 

The way your assets and debts are shared between you will depend on the individual circumstances of you and your partner. If you’re currently going through a de-facto separation and struggling to reach an agreement with the other party, contact your local professionals at MDV Family Lawyers.

Limitations:

Any claim for property adjustment needs to be made within two years of the relationship breakdown. Failure to do so will need special permission of a court, which is not always granted. 

If you or someone you know is currently experiencing a de facto separation, contact MDV Family Lawyers today. Our dedication to this area of the law ensures that our clients always receive expert advice and are represented by an experienced family lawyer with immense experience in navigating family law process.

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