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If your relationship has broken down, it is important you are aware of what you may be entitled to. If you and your ex-partner own property together, or have a child together, you may be entitled to pursue a property settlement or spousal maintenance.

As with marriages, there are time limits for financial separation in a de facto relationship. Any Court application must be made within 2 years of the date of separation. Seeking legal advice prior to or early on in your de facto separation will help you to understand what your options are quickly, and avoid losing assets you are entitled to.

The Honan Family Law team are experienced de facto lawyers and can lead you in the right direction with specialised advice tailored to your unique circumstances.

To be able to bring a Court application for property settlement and/or spouse maintenance, you will have to  satisfy the following:

1. there must have been a “de facto relationship”;
2. the “de facto relationship” has broken down (i.e. the parties have separated); and
3. one of the 4 “gateway requirements” must be met.

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The Court must be satisfied before making a property settlement order that one of the following gateway requirements set out in the Act is fulfilled:

1. the period, or total periods of the de facto relationship is at least 2 years; or
2. there is a child of the de facto relationship; or
3. that:
   • the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in certain sections of the Act; and
   • a failure to make an order or declaration would result in serious injustice to the applicant; or
   • the relationship is or was registered under a prescribed law of a State or Territory.

Pursuant to section 90SK of the Act, a further gateway issue that must be established before the Courts have jurisdiction to determine the division of property following the breakdown of a de facto relationship is the geographic requirement. The Court must be satisfied:

1. that either yourself or both you and your partner were ordinarily resident in a participating jurisdiction when the application for the order was made (i.e., in a State or Territory of Australia); and
2. that either: 
   • both you and your partner were ordinarily resident during at least a third of your de facto relationship; or 
   • the applicant for the order made substantial contributions, in relation to the de facto relationship; in one or more States or Territories that are participating jurisdictions at the application time; or 
   • you and your partner were ordinarily resident in a participating jurisdiction when the relationship broke down.

An application (for property settlement and/or spouse maintenance) can only be brought within 2 years of the end of your de facto relationship.  The exemptions to this rule are if:

1. hardship would be caused to you or a child if leave were not granted; or
2. for maintenance applications – your circumstances were such at the end of that time that you would be unable to support yourself without an income tested pension, benefit or allowance.

No. It is encouraged that you and your ex-partner try to come to an amicable agreement outside of the Court. An experienced family lawyer can conduct negotiations on your behalf to help achieve a fair settlement of assets. These negotiations can be formalised via a legally binding Financial Agreement or a Consent Order.