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Dividing property - de facto couples

 

I was not married can I get a property settlement?

Yes, if your relationship ended on or after 1 December 2002, one of you lives in WA and for at least one third of your relationship you lived in WA and:

  • You were in a de facto relationship lasting at least two years; or
  • You have a child under 18; or
  • The person applying for the orders has made substantial contributions to the property or welfare of the family and would suffer serious injustice if orders were not made.

You should get legal advice if you think you have made substantial contributions to the property or welfare of the family.

What if I am not entitled to a property settlement?

If you do not fit within these categories the starting point is that the legal owner of property is the person whose name the property is in. If both parties agree you may be able to negotiate an agreement. If this is your situation you should seek legal advice.

How does the Family Court decide who should get what?

Firstly, the court looks at what property of the relationship there is. This can be property owned by yourself, your former partner or even another person. Examples of property are houses, blocks of land, businesses, motor vehicles, shares, savings, furniture and other items such as pots and pans (sometimes called "chattels").

Secondly, the court looks at what contributions each of you made during your relationship. Contributions may be financial (such as wages, inheritance or previous savings) or may be non-financial (such as looking after children and housework). When the contributions have been worked out the court will be able to divide the property on a percentage basis and this is done on a case by case basis.

Thirdly, the court looks at what the future needs of the parties are. This includes things such as whether both of you work, whether there are children involved and who is looking after them, how long the relationship was and your health and ability to work. After looking at your future needs the court may decide to make changes to the division of property based on each person's future needs.

Lastly, the court will consider whether the final division of property is just and equitable to the parties given their particular circumstances.

Is superannuation included in property?

Superannuation may be included in a property settlement for people who were married. If you were not married, you are not able to seek orders in relation to your or the other person's superannuation policy for property settlement.

Even though superannuation is not included as property for de facto couples it is still considered when the court looks at the future needs of parties, as it is a financial resource that can be accessed in the future.

Do we have to try and reach an agreement?

You should try to reach an agreement with your former partner about financial issues. You could attempt property settlement through Family dispute resolution, arbitration or other non-court based methods. This might resolve the matter without the need to go to court. You should seek legal advice about your particular circumstances prior to signing any final agreement.

I am worried my former partner will get rid of assets, what can I do?

If you are worried your former partner may get rid of assets before you can get a property settlement you can ask the court for an injunction to stop the other person from selling or dealing with the property.


Are there any time limits?

Yes. If you were not married you should get legal advice on the time limits, as they range from 1-2 years depending on the date of your separation.


What is a financial agreement?

A financial agreement is like a contract between the parties that can deal with how property will be divided if a relationship breaks down. Financial agreements may also allow for spousal maintenance to be paid if a relationship ends. Financial agreements can be made before during or after a marriage or de facto relationship. Financial agreements can only be set aside in very limited circumstances. If you are thinking about making a financial agreement you should seek legal advice.


Can I get spousal maintenance?

Spousal maintenance is only given if one person can financially maintain the other person and the other person cannot maintain themselves because of age, mental or physical incapacity, because of a child under 18 in their care or any other adequate reason. The Court will consider a range of things when deciding on whether to grant spousal maintenance. You should seek legal advice if you want to apply for spousal maintenance.

 

Last reviewed: 01/09/2010

Last Modified: 29/06/2011

Disclaimer

The material displayed on this page is intended for information only. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia believes that the information provided is accurate, however does not accept responsibility for any errors or omissions.