DeFacto Separations

DeFacto Separations

If you have recently separated from your partner, you may be wondering whether he/she has an entitlement to your property and superannuation, or on the other hand, whether you may have an entitlement to his/her house, savings and/or superannuation.

Under the provisions of the Family Law Act, on 1 July 2010 power was conferred on the Family and Federal Circuit Courts to determine matters between parties in South Australia if their de facto relationship broke down on or after 1 July 2010.

The meaning of “de facto relationship” is defined by section 4AA of the Family Law Act 1975 (“the Act”). A person is considered to be in a de facto relationship with another person if:-

  • The persons are not legally married to each other; and
  • The persons are not related by family; and
  • Having regard to all circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

In determining whether a couple is living together on a “genuine domestic basis”, the Court will consider various circumstances of the relationship, including any or all of the following: –

  • The duration of the relationship,
  • The nature and extent of their common residence;
  • Whether a sexual relationship exists;
  • The degree of financial dependence or interdependence, and any arrangements for financial support between them;
  • The 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;
  • The care and support of children;
  • The reputation and public aspects of the relationship.

As to whether a Court will make orders in relation to property settlement, this is set out in section 90SB of the Act and will only occur if the Court is satisfied of the following:

  1. That the period, or total periods, of the de facto relationship is at least 2 years; or
  2. That there is a child of the de facto relationship; or
  3. That:-
    1. the party to the de facto relationship who is seeking an adjustment for property settlement has made substantial financial and/or non-financial contributions; and
    2. a failure to make an order would result in a serious injustice to the applicant; or
  4. The relationship is or was registered under a prescribed law of a State or Territory.

It is important to note that if you were in a de facto relationship which has broken down and you are seeking a division of assets, and you are unable to amicably resolve your property dispute with your former partner, then you must make an application to the Court for property settlement within 2 years of separation. If you have been separated for more than 2 years then you will need to seek the Court’s permission to have your matter heard out of time.

If you are undergoing separation from your de facto partner and considering a division of assets, you should seek legal advice regarding your entitlements. To make a time for a no obligation discussion with one of our Family Lawyers, call 8113 3111 or email admin@adelaidfamilylaw.com.au.

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