If your de facto relationship has come to an end, it’s important to know your entitlements and obligations. Even though there is no marriage certificate involved, Australian law rightly recognises the significance of a long-term partnership where parties have been living together for several years or share a child.
Below, we talk you through the legal considerations for de facto property settlement in Western Australia so that you can be confident in your rights and responsibilities after you part ways. This guide explains what the Family Court considers to be a de facto relationship, how asset division is determined following separation and the key time limits you should note.
What is a de facto relationship?
A de facto relationship occurs when a heterosexual or same-sex couple lives together on a genuine domestic basis. This relationship can exist even when one of the parties is married to another individual or in a de facto relationship with someone else as well.
The Family Court considers the following factors when determining a de facto relationship:
- The duration of the relationship;
- The parties’ living arrangements;
- Shared property ownership and use;
- The level of financial dependence and support;
- The existence of a sexual relationship;
- The extent of demonstrated commitment to a life together;
- Childcare and support; and
- The relationship’s reputation.
Typically, the Family Court requires de facto partners to have been in a relationship for a minimum of two years. However, the below exceptions can apply in some cases:
- The parties share a child under the age of 18 and the absence of a court order would lead to serious injustice to the partner responsible for childcare; or
- The partner applying for the court order made significant financial and non-financial contributions during the relationship, and therefore would likely suffer serious injustice without a formal property settlement.
What may I be entitled to in a de facto property settlement?
In Australia, de facto couples who have separated have similar property settlement entitlements and duties to married couples who are getting a divorce.
Importantly, ‘property’ covers the assets and liabilities of both parties, including:
- Your home
- Household items and personal belongings
- Vehicles
- Bank account savings
- Investment property
- Shares
- Cryptocurrency
- Superannuation
- Long service leave entitlements
- Trust assets
- Debts
How de facto property settlement works
In Western Australia, de facto property settlement is governed by the Family Court Act 1997 (WA). Under this legislation, you have two options for determining asset division when you separate:
- De Facto Separation Agreement; or
- Court determination.
De Facto Separation Agreement
You can deal with your de facto property settlement privately with a De Facto Separation Agreement (also called a Binding Financial Agreement in WA). This legally-binding contract details asset division between two former de facto partners, working to protect their financial entitlements and prevent any future disputes – without the time, stress and expense of going to court.
Notably, you can create a De Facto Separation Agreement at any time, be it before you live together, while you are sharing a home or after you separate.
At Affinitas Legal, we are available to advise you on the fairest, quickest and most cost-effective way to formalise your Agreement’s terms and conditions. From drafting to termination, our solicitors are highly experienced in every aspect of Binding Financial Agreements.
Court determination
Unable to make a private agreement with your former partner? Alternatively, you can apply to the Family Court of Western Australia to determine how property will be divided.
To do this, at least one partner must currently reside in Western Australia and both parties must have lived in Western Australia for at least one-third of their relationship, or the applicant must have made significant financial or non-financial contributions in Western Australia.
To ensure a fair de facto property settlement, the Family Court will:
- Value and calculate all assets and debts acquired by both parties before, during and after the de facto relationship.
- Assess the financial and non-financial contributions made by each partner to the de facto relationship, including:
- Direct financial contributions e.g. salaries and investment earnings
- Indirect financial contributions e.g. gifts, prizes and inheritances
- Non-financial contributions e.g. childcare and household chores
- Determine the future needs of both parties by taking into account factors such as childcare, health, age, finances, the capacity to earn an income and any new relationships formed after the separation in question.
Are there time limits for de facto property settlement?
Yes. In Australia, you have 24 months from the date of your separation to apply for a de facto property settlement. That said, it is strongly recommended that you take action as soon as possible to avoid any unnecessary stress, delays and disappointment.
Beyond this time limit, you may only apply for de facto property settlement with permission from the Family Court. If you are not granted an extension, you will need to provide evidence of hardship caused to yourself or a child of the relationship.
If you have missed the deadline or have questions about this timeframe, trusted legal advice can be extremely beneficial. An experienced lawyer can guide you through this complicated process and explain your settlement rights, ensuring you have the best chances of achieving a favourable outcome.
Get tailored support with de facto property settlement
While guided by the general principles mentioned above, every de facto property settlement is determined by its distinct circumstances. That’s why we highly recommend seeking professional legal support if you need to navigate the many complexities of de facto property settlement. With a solicitor by your side, you will be able to leverage the legal expertise necessary to protect you and your children’s best interests.
Our dedicated separation lawyers in Perth are here to help you every step of the way throughout your de facto property settlement. Contact our team today to arrange a consultation for personalised support.
