Are you really in a de facto relationship? If you are not truly de facto, you have no claim for family law property settlement.
In Australia today, de facto relationships are on the rise. It can become especially important for you to know whether or not your relationship is considered a de facto relationship at law if you wish to make a claim for property settlement following the breakdown of that relationship.
The Court may only make an order dividing property after the breakdown of a de facto relationship where the Court is satisfied that:
- the period or the total of the periods of that relationship is 2 years; or
- there is a child of the de facto relationship; or
- the party seeking property orders made substantial contributions to the property of either or both of the parties to the relationship or to the welfare of the family and the failure to make an order would result in serious injustice to that party; or
- the relationship is or was registered under a prescribed law of a State or Territory.
What is a de facto relationship?
- Parties must not be married/related by family (although they may be married to other persons)
- They must be a couple living together on a genuine domestic basis
Where one party disputes that there was a de facto relationship with another person, it is often on the basis of a claim by that party that he or she was not a couple with the other person living together on a genuine domestic basis.
If you were before a court, no particular finding determines whether or not that requirement is met but the following factors will be of relevance where a court is determining if a de facto relationship existed:
- Duration of the relationship
- The nature and extent of any common residence
- The existence or otherwise of a sexual relationship
- The degree of financial dependence or interdependence and any arrangements for financial support between the parties
- Ownership, use and acquisition of their property
- The degree of mutual commitment to a shared life
- Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship
- Care and support of children
- The reputation and public aspects of the relationship
Is it worth your while to make a claim for property settlement or to seek order for division of property?
Even if at law you can say that you were in a de facto relationship with your former partner, it is very important before you ever embark on negotiations with your former partner or legal action seeking orders for division of property that a careful cost/benefit assessment is made for your circumstances. You will want to be clear that the end result (obtaining court orders) will have been worth not only the financial cost but also the emotional toll it may take on you.
In making that assessment, you will want to take into account:
- The likely range of your entitlement for the division of property and how that translates in dollar terms., ie., the aggregate amount that you are likely to receive or retain pursuant to court orders for the division of property
- What amount are you likely to spend in legal fees in pursuing your claim?;
- how long it can take to resolve the matter, particularly where a court action may be involved. If your former partner disputes that a de facto relationship existed, a discrete court hearing to determine whether there was a de facto relationship at law will add considerably to the cost of obtaining final orders for division of property (assuming the court finds in your favour that a de facto relationship existed) and the time taken to obtain those orders. It is not uncommon for it to take some 12 months or more before a matter reaches a trial and there can then be further delay whilst the Courts are congested before final orders are issued.
- The risk (where you do not seek final orders now for the division of property) that your former partner may make a claim in the future seeking final orders and at a time when your net asset position has increased. You may not at this time be able to assess the relative merits of such a future claim and whether or not it would be likely to succeed. However, if you obtain final orders, it is less likely that your former partner would be able to later have those orders varied or set aside.
Still not sure or need help?
Know where you stand. Contact our Brisbane Property Settlement Lawyers today and receive tailored legal advice. Our experienced team can help give you the confidence