Property Settlement – Separation before 1 March 2009
If you haven’t entered any agreement in relation to property at the beginning of the relationship, then in New South Wales the relevant legislation to determine your property settlement entitlements is the Property (Relationships) Act 1984. This legislation applies to homosexual couples and heterosexual couples.
As for married couples, there is no set standard for property division. Each matter is unique - the way your case would be decided takes into account the current laws and previous decided cases which interpret those laws.
When making a decision on what your entitlements are, the Court considers contributions to the property that you and your partner have made over the course of the relationship. Contributions include:
Unlike married couples, the de facto legislation does not directly take into account your future needs.
Your lawyer will help you identify the relevant issues to your situation and give you an idea on what is a reasonable settlement for you, and what a judge would likely decide if the matter proceeded to court. Most importantly, your lawyer should give you a advice that is practical and realistic, with a view to helping you reach a resolution as quickly as possible. Some time limits do apply, so you should seek legal advice.
Before commencing any Court proceedings, it is best to make a genuine attempt to resolve your property dispute without litigation. There are numerous options to achieve this, including mediation, dispute resolution, and having your Family Lawyer assist in negotiations.
At the moment, the NSW State Courts determine NSW de facto matters. At present there are proposals to give the jurisdiction to determine de facto matters to the Family Court, however this is not yet available. The difficulty is that for de facto couples, property settlement would be considered in one court and children’s matters would be considered in another, which usually results in an increase in costs. There is little opportunity to mediate property matters unless the parties arrange the mediation privately.
If you have already separated, it is important to know that there is a two year time limit from the date of separation to make any claim for property settlement orders. If you are outside the two year period, you would first have to seek leave (permission) from the Court to make any application out of time.
Separation after 1 March 2009
From 1 March 2009, the Federal Government introduced to Parliament new legislation which will apply the same principles to all couples, whether they are married or not, in relation to financial disputes arising from the breakdown of the relationship.
This development is a major change; it meets the needs of the modern society, and the needs of couples and families. The change is a direct response to the modern concept of family. These changes also impact on same-sex couples when relationships break down.
When a relationship breaks down and a court is called upon to resolve financial issues, principles which were applied to married couples will now be consistently applied to all couples whether they are same-sex or opposite-sex.
All financial issues arising from breakdown of a relationship will now be dealt with by the Family Court, of Courts that apply the Family Law Act. Previously only financial matters were able to be dealt with in the Family court if the couple was married. Now the specialist Family Court familiar with the issues and difficulties of family disputes will be available to all couples.
The definition of a defacto relationship requires the couple to have been living together for a period of two years. Casual relationships will not apply.
The new law will also provide for Superannuation entitlements to be split between defacto couples.
These changes are now in place and require preparation and thought from couples in a defacto relationship. Couples in a defacto relationship can secure their current financial arrangements with the advice of a specialists Family Lawyer and a financial agreement.
Please call us for advice about how these reforms may affect you, discuss your options, and have piece of mind moving forward.