Can de facto partners seek a property settlement after separation?
Many people assume that if a couple is not married, they have no legal right to a property settlement after separation. In Australia, that is often incorrect. De facto partners may have rights to seek a division of property, superannuation and, in some cases, spousal maintenance.
What is the legal threshold for de facto property settlement claims?
In broad terms, a de facto relationship exists where two people, whether heterosexual or same-sex, live together on a genuine domestic basis.
To bring a property settlement claim, certain legal thresholds usually need to be met, commonly:
- the relationship must have lasted at least two years;
- there must be a child of the relationship;
- the relationship is or was registered under a prescribed law of a State or Territory; or
- one party must have made substantial contributions such that it would be unjust not to recognise them.
Importantly, property settlement is not limited to assets held in joint names. The Court may consider the full asset pool, including real estate, bank accounts, businesses, investments, superannuation and liabilities. A property being in one party’s sole name does not necessarily determine the outcome.
How are property settlement claims assessed?
When assessing a settlement, the law looks at a range of matters, including:
- the financial contributions made by each party;
- non-financial contributions;
- homemaking and parenting contributions; and
- the future needs of each party.
This is particularly important in de facto relationships, where one partner may have contributed through caring for children, supporting the household, or assisting the other party’s business or career rather than through direct financial input alone.
Applying for a de facto property settlement
Timing is critical. In most cases, an application for a de facto property settlement must be made within two years of separation. Delay can significantly affect a party’s position.
The key point is this: the absence of a marriage certificate does not mean the absence of legal rights. De facto partners may still have substantial entitlements, and early legal advice is often essential to protect those rights and achieve a fair outcome. For more information or assistance, contact Wadlow Solictiors on (08) 8212 2955.
