Marriage
You do not have to separate as a couple or start divorce proceedings to divide matrimonial property.
Who gets what?
Matrimonial property is all the assets that have been collected by the parties from the start of the marriage, up until the time a court order is made to divide the property or a Binding Financial Agreement. The agreement states a final division of property and needs to be executed by both parties. The assets include, but are not limited to: real property, furniture, savings accounts, shares and superannuation. Property can include beneficial interest in a trust, shares in a company and interest in a deceased estate. Property is still divided, even if it is held in one name. The court can also consider property that has been disposed of either by sale or gift, and could impose a value for that property on a party that has dealt with that asset.
Whatever the length of your relationship, by law the court considers a property settlement of 50:50. The court is also required to consider a range of factors set out in the Family Law Act. In the case of a really short relationship, and one where one party has contributed a lot more to the share of the property it would usually be unjust for the main contributor to lose half of his/her property.
It is important to get legal advice before proceeding with a settlement and MLC Lawyers is here to support and advise you. We only encourage litigation if there is no alternative to protect your entitlements.
De facto relationships
Definition: De facto couples who are of the same or opposite sex are covered by the Family Law Act if they separated after 1 March 2009.
To be regarded as a de facto couple the court needs to accept that one of the following applies:
- The total period of the relationship has been two years
- There is a child of the relationship
- The relationship has been registered in accordance with the laws of a State or Territory.
- A serious injustice would occur if the substantial financial or non financial contribution of one party was not recognised by the making of a court order.
In some circumstances there can be a dispute as to whether there was in fact a de facto relationship. This will especially occur where one party may be in two or more relationships at the same time. Dealing with this type of claim requires examination of the relationship’s details, such as common residence, existence of a sexual relationship, financial interdependence and ownership of property.
Once the court accepts a de facto relationship existed then it applies all the factors that are relevant to the division of property in a marital relationship. However, issues of contribution and identification of relationship property can be more difficult in this situation.
The time limit for making a claim for division of matrimonial property is two years from the date of the divorce. For a de facto relationship it is two years from the date the relationship ended. Once again, this can be difficult to determine in some circumstances so getting good advice at the right time is critical.