Whenever property is an issue at the end of a relationship it is always best to seek the advice of a Family Lawyer. The Family Law Act 1975 requires parties, whether married or de facto, to end their financial relationship formally by what’s called ‘Consent Orders’ or a ‘Binding Financial Agreement’. To split up property and assets between the parties, it is first necessary to gather and list all property and assets belonging to both parties this is known as the asset pool. All forms of written agreement to finalise property settlement must also contain a full list of all of the assets, including superannuation and liabilities and the agreed values of each of those items. Same sex relationships are not dealt any different to de facto relationships and marriages, that is, the same issues around children and property apply.

De facto Relationships

A relationship means 2 people living in a bona fide domestic relationship. The Court can only have jurisdiction to deal with that relationship, only if one of the following 3 things apply:

1. The parties to the relationship have lived together for a minimum period of 2 years; or

2. If the parties to the relationship have not lived together for a minimum period of 2 years, but there is a child/children from the relationship (even though the parties may not have been living together for 2 years), a child as a result of the relationship allows a jurisdictional ground for the Court; or

3. When one party has made a substantial financial contribution to the assets of the relationship. A substantial financial contribution would be if a home was purchased together and both parties made a substantial contribution towards the deposit (this does not mean it has to be an amount equal in value) and each signed up for the mortgage repayments.

Once it is established that a Court has jurisdiction to hear a matter involving a de facto relationship. The Court will then identify whether the parties have been in a relationship as a couple. These circumstances may include:

1. The duration of the relationship;

2. The nature and extent of their common residence;

3. Whether a sexual relationship exists;

4. The degree of financial dependence or interdependence, and any arrangements for financial support between them;

5. The ownership, use and acquisition of their property;

6. The degree of mutual commitment to a shared life;

7. Whether the relationship is or was registered under a prescribed Law of a State or Territory as a prescribed kind of relationship;

8. The care and support children;

9. The reputation and public aspects of the relationship.

Whether or not parties are in a de facto relationship is not determined by what’s in the minds of the parties or how they view their relationship but is the product of the Act. Regardless of whether or not the parties are married, if they are deemed to be in a de facto relationship the Family Law Courts handle the matter in the same way as a marriage.

Joint Asset Pool

All property that is solely owned and jointly owned property, form part of what is called the ‘joint asset pool’. The joint asset pool is what is available for distribution between the parties. This is also applies for mortgages and debts that accrued during the relationship. All assets are included in the property pool including homes, cars, boats, bank accounts, shares, superannuation and all debts.