Legal Separations

De Facto & Same-Sex Relationship Lawyers Melbourne

When a de facto or same-sex relationship ends, the process of dividing property and finances can be just as complex as for married couples. At Kelly & McHale Family Lawyers, we provide expert guidance and support to help you navigate this often challenging terrain, ensuring your rights are protected and you achieve a fair outcome.

Understanding Your Rights After Separation

Since significant legal reforms in March 2009, de facto couples (including same-sex couples) across most of Australia have been able to access the same property settlement principles as married couples through the Federal Circuit and Family Court of Australia. This means your relationship contributions - both financial and non-financial - are recognised by the law.

What is a De Facto Relationship?

Under Australian family law, a de facto relationship is typically defined by a couple (of the same or opposite sex) living together on a genuine domestic basis. The Court considers various factors to determine if a de facto relationship existed, including:

  • Duration of the relationship: Generally, a relationship of at least two years is required, unless there is a child of the relationship or significant contributions have been made.
  • Common residence: Whether you lived together.
  • Sexual relationship: Whether a sexual relationship existed.
  • Financial dependence or interdependence: The degree of financial reliance or intermingling of finances.
  • Ownership, use, and acquisition of property: How property was owned and used.
  • Degree of mutual commitment to a shared life: Such as acting as a couple socially.
  • Care and support of children: If there are children of the relationship.
  • Public perception of the relationship: Whether the relationship was known among family and friends.

It’s important to note that you don’t need to satisfy all these factors for the Court to recognise your relationship as de facto.

Key Considerations in De Facto Property Settlements

The Court follows a similar process for dividing property for de facto couples as it does for married couples. The main considerations include:

  1. Identifying and Valuing Assets and Liabilities: This includes all property, superannuation, debts, and financial resources of both parties, whether acquired before or during the relationship.

  2. Assessing Contributions: The Court looks at:

    • Financial Contributions: Such as income, inheritances, or assets brought into the relationship.

    • Non-Financial Contributions: Such as work done to improve a property, or unpaid work in a family business.

    • Contributions as Homemaker or Parent: The significant role of caring for children and managing the household.

  3. Future Needs: The Court considers the future needs of both parties, such as age, health, income-earning capacity, and the care of any children.

  4. Just and Equitable Outcome: The overall aim is to achieve a division of property that is fair and equitable in all the circumstances.

Frequently Asked Questions (FAQs) about De Facto & Same-Sex Separations

Understanding these common questions can provide clarity as you navigate your separation.

How do we prove we were in a de facto relationship?

You may need to provide evidence such as joint bank account statements, lease agreements or property ownership documents in joint names, mail addressed to you both at the same address, statutory declarations from friends or family confirming your relationship, and evidence of shared activities or public recognition as a couple.

To help us advise you: What kind of documents or evidence do you have that might demonstrate the nature of your relationship? How long were you together?

What if my ex-partner and I don’t agree on the date we separated?

The date of separation is a key factor, particularly for the two-year time limit. If you disagree, the Court may need to decide based on the evidence. Factors include when you stopped living together as a couple, communicated the end of the relationship, or started behaving as separated individuals.

To help us advise you: What is your understanding of when the relationship ended, and what events mark that date?

Is there a difference between how property is divided for same-sex couples versus other de facto couples?

No. Since the 2009 amendments to the Family Law Act, same-sex de facto couples have the same rights and are subject to the same property settlement principles as opposite-sex de facto couples in most of Australia.

To help us advise you: Are there any specific concerns you have relating to your circumstances as a same-sex couple?

My relationship was less than two years. Can I still make a property claim?

Generally, a de facto relationship needs to have lasted at least two years for a property claim to be made. However, there are exceptions. You might still be able to make a claim if: * There is a child of your de facto relationship. * You made substantial contributions (financial or non-financial) and a serious injustice would result if an order wasn’t made. * The relationship was registered under a prescribed law of a State or Territory.

To help us advise you: Do any of these exceptions apply to your situation? Can you provide details about your contributions or if you have children together?

What happens if we agree on how to divide our property?

If you reach an agreement, it’s crucial to formalise it to ensure it’s legally binding and final. This can usually be done by applying to the Court for “Consent Orders” or by entering into a “Binding Financial Agreement” (BFA). Both have specific legal requirements. We can advise you on the best option for your situation and prepare the necessary documents.

To help us advise you: Have you had any initial discussions with your ex-partner about how you might divide your property?

Does it matter whose name an asset is in?

Not necessarily. The Court considers all assets and liabilities of both parties, regardless of whose name they are legally in. The focus is on the contributions made by each party to the acquisition, conservation, or improvement of those assets, as well as future needs.

To help us advise you: Can you list the main assets you and your former partner have, and who currently holds them?

What if my ex-partner and I started living together before March 2009?

The Family Law Act amendments apply to de facto relationships that broke down after 1 March 2009 (for most states). If your relationship ended before this date, state or territory laws may apply, and the rules can be different. It’s important to get specific advice if this is your situation.

To help us advise you: When did you and your former partner separate?

Take the Next Step Towards Clarity

The end of a de facto or same-sex relationship brings uncertainty. Let us provide the clear, practical legal advice you need. Contact Kelly & McHale Family Lawyers for your free first consultation to discuss your entitlements and how we can assist you.

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