The ‘how-to’ of De Facto property settlements
How will our Property be Divided?
The Family Law Act sets out how property is divided, for married couples and for de facto couples (who separated after 1 March 2009).
What is a De Facto Relationship
A de facto relationship is defined in the Act as “the relationship of a couple living together on a genuine domestic basis”. Whether such a relationship in fact exists requires careful consideration in each case. A de facto spouse is able to pursue a property settlement if it is just and equitable to do so and provided one of the following conditions exists:
- The parties have lived in a de facto relationship for at least 2 years; or
- There is a child from the relationship; or
- It would be unjust not to recognise a de facto spouse’s substantial financial or non-financial contribution.
De facto couples who separated before 1 March 2009 could seek a property settlement under Queensland Law, but were unable to pursue Spouse Maintenance or seek a split of superannuation from their de facto spouse.
Determining a Property Division
The court takes the following steps to work out how property will be divided at the end of a de facto relationship or marriage:
- The court takes an inventory of all assets and liabilities of the parties, whether in joint names or a party’s sole name
- A current value is put on all items in the pool
- The court must also work out the financial and non-financial contributions both parties made during the relationship and each party’s future needs, including, amongst other things, their
- future obligations;
- financial situation; and
- costs of caring for any children from the relationship.
Time Limits
Parties can make a property settlement at any time after separation but for married couples, an Application for property settlement and/or spouse maintenance must be filed in the court within 12 months of the making of a Final Divorce Order.
An Application to the court for property settlement and/or spouse maintenance in a de facto relationship must be filed in court within 2 years of the date that the relationship ended.
What Happens to Superannuation?
Under the Family Law Act, superannuation can be divided between the parties as a part of their property settlement.
The law regarding superannuation was changed in 2002.
Superannuation funds can be split between spouses and rolled over as part of a property settlement. It is not compulsory to split superannuation.
Specialist advice may be required in relation to specific superannuation funds and the calculation of the value of superannuation for family law purposes. Ask your solicitor for help if you would like to consider accepting, or proposing, a super split.
For a fixed cost no obligation initial appointment to discuss your specific situation, call us on (07) 3221 4300.
