What am I (or my) de facto entitled to after separation?

De Facto couple separations are considered the same as financial separations for married couples. The Court assesses how assets are divided on the same criteria. These can be found here.

There are also eligibility criteria a court for to consider you to be a de facto couple living together in a genuine domestic basis. Read more here about de facto eligibility criteria.

How to work out what you are entitled to in a de facto separation.

Property settlements are complex and individual to your specific circumstances. No family law case is the same as there are always different factors and events that occurred during your relationship that need to be considered. If a Court were to decide on how you divide your assets after a separation then they would consider the following four criteria:

1. Firstly, identifying the pool of assets;
2. Secondly, considering the contributions (including financial and non-financial) from each party before, during and after the relationship;
3. Thirdly, looking at each party’s future needs (such as their income, care for any children or health issues); and
4. Fourthly, making an order that is just & equitable in all of the circumstances.

These principles are used throughout family law to finalise property law settlements.

Identifying the Pool of Assets

The main way to look at the pool of assets is by looking at them globally. This means calculating the value of the asset pool in the relationship including assets, liabilities and superannuation interests. This includes all your personal assets such as your home, any investments, monies in bank accounts, the value of motor vehicles and any businesses that either party has an interest in.

Obtaining clear and frank family law advice early is important. This is because one de facto partner may deliberately diminish the value of the assets or increase debts as a tactic. It is always recommended to seek legal advice quickly to protect the value of the asset pool.

Contributions from each Party

The contributions from each party is considered in three different time zones: before, during and after the de facto relationship ended. Many factors play into it, however the contributions step can be broadly broken up into financial and non-financial contributions.

The length of the relationship has a significant impact on how a total asset division may look. If assets were brought into a relationship that lasted for 20 years then those initial contributions may not have as strong an impact if the relationship lasted for only two years.

Future Needs Assessment

This has many components such as:

• The age of the parties;
• The need to provide for children;
• The earning capacity of the parties;
• The health of the parties; and
• Ability to generate income especially if one person has sacrificed their work look after the children of the relationship.

These future needs assessment is to ensure that one party is not disadvantaged by the other party for their future needs. Also this part of the financial settlement deals with child support for any children of the de facto relationship.

It is also important to note the custody of any child of the de facto relationship is handled separately to financial settlement but, can be done at the same time.

Just and Equitable Outcome

The final settlement must be just and equitable. This can be difficult for couples to determine what this is especially in their own relationship.

Having the right legal advice on how assets are divided is crucial. Most people find it difficult to consider all the factors and work out what is a fair outcome for both parties.

In addition to dividing assets you may also have to pay or ask for spousal maintenance. Read more on spousal maintenance here.

How do we reach an agreement?

There are a variety of ways that people seek to resolve a financial settlement. It can be difficult as people may change their mind after a period of time and this can make the negotiation process difficult. It is best to get legal advice about your separation and what you are entitled to before promising things to each other.

Mediation

Settlements can be reached amicably and then documented in a Binding Financial Agreement (BFA) or by in an Application for Consent Orders. You might need to mediation if you can’t agree on what the assets division should be. Mediation can be a difficult, but most family law settlements will be negotiated through mediation with the help of your lawyer. It is important that you are well prepared and represented in mediation to get the best outcome.

Once you have agreed to the terms your lawyer will draft a BFA or consent orders so that the terms are clear and do not give rise to further disputes.

Going to Court

If you can’t reach an agreement then you may have to issue proceedings to go the family law courts, the Family Court of Australia or the Federal Circuit Court of Australia, to decide your matter for you.

The court processes can be difficult and we typically look at opportunities to avoid having to go to court depending on your instructions. At the end of the court process you will have financial orders that are legally binding, which is why some have to go to court.

Having your case prepared and well organised and presented by expert negotiators will assist in getting you the best outcome. Our family lawyers are well experienced in handling difficult and complex property settlements in family law. We ensure that you have the best advice about how you can improve your chances of success.

The law for each state and territory is the same for family law and we can assist you if you are based in any area or overseas. Some time limitations can apply in family law and it is always best to act sooner rather than later to achieve a better outcome.

Financial Separations are difficult emotionally as the uncertainty of the outcome and what this means for your future is hard to establish and can be left in limbo for quite some time without being resolved. Our family lawyers aim is to provide you with frank, honest advice so that you are fully armed with the right information to make an informed decision.

To speak to a family lawyer about your de facto separation or other family law matters contact us on 1300 907 335 or complete an online enquiry form and we will be in contact with you promptly.

All enquiries are treated confidentially.

Please note: The above is not intended to be legal advice. Every circumstance is different. Always seek legal advice in relation to your individual situation.