September 19, 2021

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equality opinion

De Facto Separation and property settlement: What you need to know

Separation is never easy. Add property to the mix and it gets even more complex....
Divorce vs Property Settlement: Fact Sheet | Div-ide Financial Separation

Separation is never easy. Add property to the mix and it gets even more complex. And if you’re in a de facto relationship – you may well be wondering what happens if you split with your partner if you both own or live in the same house. 

In Western Australia, de facto couples are recognised as a legal unit and therefore have certain laws that can apply when it comes to separation. And in any separation, it’s good to have your back covered. 

It’s therefore very important you know how to proceed to protect your assets and ensure a fair and just outcome for you and your family. Here’s everything you need to know about de facto separation and property settlement in Perth.

Hold up. What’s a de facto relationship?

In WA, de facto relationships are a couple who live together but are not married. Essentially they behave as if they were a married couple, but aren’t. More specifically, de facto relationships are recognised under the Family Law Act as a couple who:

  • Are not legally married to each other
  • Are not related by family
  • Live together on the basis of a genuine and ongoing domestic relationship 

Can anyone be in a de facto relationship?

Yes. In anyone of any age, regardless of whether they are the same or opposite sex can be in a de facto relationship. You can even be in a de facto relationship if you are legally married to another person or in another de facto relationship with a third person. You cannot be in a de facto relationship with a member of your family.

Do de facto couples have the same rights as married couples?

Yes again! As a de facto couple, the Family Law in WA provides for the (almost) same property settlement rights as if you were married. This also applies to same-sex couples who fall into the de facto category. In Western Australia, superannuation is not divisible amongst the parties, making it the only exception to the laws that affect legally married couples. If you live in another state such as NSW, superannuation is divisible by the courts in a de facto separation

What happens when a de facto relationship ends 

As with married couples, it is always recommended that the parties settle the issue of property and assets outside the courts and on their own terms. This will avoid a longer and more costly legal process. Even if you aren’t on the same page at the start, there are multiple ways of coming to a mutual agreement through family dispute resolution (FDR) which is available through the Family Court of Western Australia. This process is also necessary to complete if you plan on taking the matter to court. 

Moving forward with a de facto separation property settlement

In order to move forward with the property settlement in court – you will first need to fulfil the eligibility requirements regarding your relationship. Here are some basics:

  • You need to be separated no longer than 2 years – if not, you will need permission from the court to proceed.
  • You need to provide evidence of your de facto relationship including that you have in fact lived together in Western Australia and that at least one party was residing in WA, on the date of application.
  • If your relationship was not longer than 2 years, you will need proof of either a child of the relationship who is under the age of 18 years, or one party applying has made substantial financial or non-financial contributions, where a failure to make an order would result in serious injustice. 

What does a court consider when splitting property between de facto couples?

Courts will look at various aspects of your situation when coming to a decision on your property settlement order. Here are some things they will look at during proceedings:

  • The length of your relationship
  • Whether you lived together and under what circumstances 
  • Whether you had a sexual relationship 
  • How you organised your finances and the net value of your assets including shares, property, etc.
  • Whether you own joint property or not
  • Whether there are children (of the relationship or not)
  • How you act within your relationship and your perception of it

How to protect yourself in a de facto separation 

At the end of the day, it’s a good idea to protect your assets and ensure a fair outcome no matter what the issue. If you are considering splitting up with a de facto partner, it’s important to do your research and make sure you are prepared for a range of outcomes. 

It’s also important to think ahead and get in contact with de facto lawyers in Perth to put yourself in the most stable position possible moving forward. Separation can be an unpredictable time. Give yourself more control by contacting qualified de facto family lawyers in Perth today. 

* This article does not constitute legal advice. For qualified legal advice, contact a legal professional.