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.
