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De facto separation claims – sorting out the facts from the fiction

in Family Law by Jon Redman on

There are many misconceptions as to when a de facto partner can make a claim for an interest in their former partner’s property. The classic example being that if your partner moves in, then after six months they can take half of what you own. So what is fact and what is fiction?

Contrary to popular belief, for a de facto relationship to be reconsidered within the Family Court the couple must be living as a de facto couple for at least two years. If the relationship falls short of this period the Family Court has no jurisdiction to make orders in relation to your assets and liabilities.

There are, however, exceptions to this rule to prevent any serious injustice to the de facto partner who does not hold any assets. Circumstances where this may arise are if a child is born out of the de facto relationship or one party has made a significant contribution to the other party’s assets in the time they cohabitated.

Of course what is defined as a ‘significant contribution’ is not clearly identified by the Family Court, however, your solicitor can provide advice in relation to the current case law which can give guidance as to what a significant contribution is.

So if it is established that you have lived together as a de facto couple for more than two years, what is the other party entitled to should you separate?

The Family Court works upon the same principle with regard to short and long unions of married and defacto couples, the only exception being how superannuation is treated within a de facto relationship.

Generally, there is a presumption that if the de facto relationship is short, or under five years, the parties should more or less receive what they contributed financially towards the assets and a percentage accounted for any growth in value of the assets.

If the de facto relationship is a long relationship, non-financial contributions become more relevant and the parties contributions are more likely to be considered equal which should be reflected in what each is to receive.

These presumptions are of course rebuttable on the basis that each case has their own set of facts and circumstances which can alter what each party is to receive. Your family law solicitor is best equipped to advise what you could be potentially entitled to.

To find out more, get in touch with us today.

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