When going through the process of separation it can be quite a difficult time.
In Australia de facto relationships and marriages are treated similarly under the Family Law Act (the Act).
There are some slight differences that couples in a de facto relationship should be aware of when they are separating. To resolve property divisions, you must meet certain criteria and there are specific time limits that you need to be aware of. We give an overview of the process that separating de facto couples typically go through.
A marriage is easier to define as the start date is clear based on the Marriage Certificate. A de facto relationship must fall under the definition of a de facto relationship definition under the section 4AA of the Act.
How a de facto relationship is defined:
You or your partner must have been living together on a genuine domestic basis;
The relationship has to have been existing for two years or you have a child;
A significant financial contribution has been made;
It is a registered relationship; and
Other criteria (see the full criteria here).
If your relationship falls under this category then you can have your property settlement heard through the normal family law methods to resolve financial settlements.
Separating couples can live under the same roof, but you will need to prove the date of separation if necessary.
Time limits apply for de facto couples to finalise property matters. The Act allows you two years from the date of separation to resolve how you are going to divide your assets.
If you have children you must also make decisions for financial support and the care of your children. This is a separate legal process from your financial separation, but usually done at the same time.
Working this out can be complex or simple depending on your family’s circumstances and whether the split is amicable or not. Before you start the settlement process it is helpful to have an idea from a family lawyer about what a fair outcome is. This initial advice can help you get a plan and guide your decision-making process. Understanding how the process works and what a reasonable settlement is from the outset will help you avoid issues and can improve your chances of a better outcome.
There are a variety of ways to resolve family law disputes including mediation or private negotiation. Throughout the process your family lawyer will be helping you to reach an agreement, negotiate a better outcome and protect your interests.
For childrens’ matters you typically start by attempting a parenting plan. If you agree on custody arrangements for your children you can apply for consent orders to make the agreement legally binding.
In financial settlements you will try to reach an agreement and have that documented in a binding financial agreement (BFA). You may also consider making an application for consent orders in the Family Court to formalise this agreement.
If you cannot negotiate a BFA or consent orders, or parenting arrangements together you will need to take legal action for a court to settle your property settlement or childrens’ matters.
Starting a court proceeding does not mean that you “have to” go to court. There is typically opportunity to settle your matter earlier. Most matters settle before a court date. Commencing legal proceedings forces the other party into reaching an agreement if they are unwilling to negotiate and will bring the matter to a conclusion. This will give you certainty for your financial and personal future.
Much of family law is informing our clients of their rights and how to bring their disputes to a resolution faster. Considerations such as length of relationship, personal circumstances, financial contributions and ability to work can affect what you are entitled to in a separation. Each family is different and the court has certain requirements and viewpoints that can change over time changing what people are entitled to.
Getting clarity on the courts’ perspective is important when working out how to settle your financial and child custody matters. It helps inform what you are entitled to and what a fair settlement looks like.
Our experienced family lawyers have helped many clients reach settlements, in mediation and helped many in through the family court processes. We understand the process and can advise you on how to get the best outcome for you and your family.
We are professional and experienced family lawyers and understand the importance of what our advice means for you and your family. Getting professional and skilled family law advice is crucial to getting the best for you and your family.