Am I entitled to property settlement?
The division of property is often one of the most challenging issues to resolve during separation or divorce. Whether you were in a heterosexual or same-sex relationship, married or de facto, you may be eligible to apply for a property settlement after your relationship ends.
People consider many factors when deciding whether to pursue a property settlement, such as safety concerns and their children’s financial and emotional needs. However, forgoing entitlement to a property settlement can leave them worse off financially, with this imbalance often becoming more apparent later in life. This is why obtaining legal advice about your entitlements is essential, enabling you to make informed decisions and plan realistically for the future.
Under the Family Law Act 1975 (Cth) (FLA), married and de facto couples have certain rights to a property settlement.
What is a De Facto Relationship?
A ‘de facto relationship’ is a relationship between two people who:
- Are not legally married to one another
- Are not related by family
- Have a relationship as a couple living together on a genuine domestic basis
A de facto relationship applies to both heterosexual and same-sex couples, including cases where one partner may still be legally married to or in a separate de facto relationship with another person. These relationships come in many forms, whether couples live together or separately. Whether a relationship is legally recognised as de facto depends on various factors (see section 4AA (2) of the FLA).
The court will issue a property or maintenance order for a de facto relationship only if it is satisfied that at least one of the following conditions is met:
- The duration of the de facto relationship, either in total or cumulatively, is at least two years.
- There is a child from the de facto relationship.
- The de facto partner applying to the court has made substantial contributions, and failing to issue 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 meet any of the above criteria, you may not be entitled to apply for a declaration or order concerning property under the FLA. In such situations, it is advisable to seek legal advice to explore whether other remedies or legal options are available to you.
What is the Timeline for This Process?
Married couples have the option to apply for a property settlement before their legal divorce is finalised. However, it is important to note that applications for property adjustment must be submitted within 12 months of the divorce becoming final. For individuals who were previously in a de facto relationship, the application must be made within two years of the relationship’s breakdown. Therefore, seeking legal advice as soon as possible is essential.
Separation happens when one partner decides the relationship is over and no longer wants to continue as a couple, even if this decision isn’t mutual. It can be beneficial to record the date of your separation, as this date serves as legal evidence. This information is important not only for property settlement but also for accessing Centrelink services.
Next Steps
WIRE runs both one-on-one clinics and regular group seminars on separation and property. Contact us to speak to a trained support worker who can help you access these resources.
Contact WIRE at 1300 134 130 if you would like to know more about property settlement.
