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Am I entitled to property settlement?

Regardless of whether you were in a heterosexual or same sex relationship, married or de facto, you may be entitled to apply for property settlement after your relationship ends.

Often, one of the most difficult issues to resolve when separating is the fair division of property. It is important to get legal advice about property settlement, and what you would be entitled to receive.

Women make decisions about whether they pursue a property settlement for many reasons, including safety considerations, and their children’s financial and emotional needs. Unfortunately, forgoing entitlements may mean that they end up worse off financially.

This financial inequity may become particularly obvious in later life. This is why it is always important to get legal advice about what you may be entitled to receive, so that you can realistically plan for the future and have all the relevant information you need to make a decision.

The Family Law Act 1975 (Commonwealth) gives separated couples (married and de facto) certain rights to a property settlement. Under a property settlement, the wealth built up during the relationship is divided between the parties.

 

Next steps

WIRE runs both one-on-one clinics and regular group seminars on separation and property. You can also download our 2015 booklet, which contains a lot of the information on this site.

Am I entitled to property settlement?

Under the Family Law Act 1975 (Commonwealth) married and separated de facto couples have certain rights to a property settlement. However, the Family Law Act 1975 (Commonwealth) does not apply to all de facto relationships.

A court will only make a property or maintenance order in relation to a de facto relationship if the court is satisfied that any of the following applies:

  • the period, or total periods, of the de facto relationship, is at least 2 years
  • there is a child from the de facto relationship
  • the de facto partner applying to the court made substantial contributions and a failure to make a declaration or order would result in serious injustice to that partner
  • the relationship is or was registered under prescribed State or Territory law.

If your relationship with your de facto partner does not fall into any of the above categories, you may not be entitled to apply for a declaration or order in relation to property under the Family Law Act 1975 (Cth). In this case you should get legal advice about whether other remedies or legal avenues are available to you.

A ‘de facto relationship’ is a relationship between two persons where:

  • The persons are not legally married to one another and
  • The persons are not related by family and
  • They have a relationship as a couple living together on a genuine domestic basis
  • De facto relationship applies to heterosexual and same-sex couples. It can also apply where one of the partners is still legally married to another or in de facto relationship with another person. De facto relationships can come in all shapes and sizes (e.g. you may be living together or separately), but whether you are legally considered a couple, depends on various factors (see s 4AA(2) of the Act).

Myth: “We’re not divorced, so we can’t settle our property yet.”

In reality:

Married couples can apply for property settlement before they are divorced. Timing is important as there are some legal hurdles to property division that come up a year after a divorce or two years after the separation of a de facto couple — make sure you get legal advice as soon as possible.

It might be useful to write down the date of your separation in a diary or notebook. Separation is when one person in a relationship (it doesn’t necessarily have to be both of you) considers the relationship ended, and they no longer want to remain a couple.

Where can I go for help?

If reading this article has raised issues for you, you can contact WIRE at any time between 9am and 5pm Monday to Friday.

Contact us here

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