The ‘How-to’ of DeFacto Property Settlements
How will our Property be Divided?
The Family Law Act sets out how property is divided, for married couples and for defacto couples (who separated after 1 March 2009).
What is a DeFacto Relationship
A defacto relationship (includes same gender couples) is defined 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 defacto spouse is able to pursue a property settlement where one of the following conditions exists:
- You have lived in a defacto relationship for at least 2 years; or
- You have a child from the relationship; or
- It would be unjust not to recognise a defacto spouse’s financial or non-financial contribution.
Defacto couples who separated before 1 March 2009 (under Queensland Law) are unable to pursue Spouse Maintenance and unable to include Superannuation as part of the property for division.
Determining a Property Division
The Court has the right to determine how property is divided when a marriage or defacto relationship has broken up.
The Court takes the following steps to work out how property will be divided:
- The Court takes an inventory of all assets and liabilities that existed at the time of separation;
- A current value is put on the assets;
- The Court must also work out the financial and non-financial contributions both parties made during the relationship
When deciding how the assets will be divided the Court considers each parties;
- future needs;
- future obligations;
- financial situation; and
- the cost of caring for any children from the relationship.
A married couple can make a property settlement at any time after separation but if an Application for property settlement to the Court is to be made that must be filed within 12 months of a Final Divorce Order.
If an Application to the Court for property settlement in a defacto relationship is to be made that must be filed in Court within 2 years after the date the relationship ended.
What Happens to Superannuation?
In property settlements under the Family Law Act, superannuation is defined as ‘property’.
The law regarding superannuation was changed in 2002. It provides detailed formulas for calculating the value of superannuation in property settlements.
These formulas need specialist advice. Ask your solicitor for help in these situations.
Superannuation funds can be split between spouses and rolled over as part of a property settlement. It is not compulsory to split superannuation.
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