How to division of property when a marriage or de facto relationship ends
Who gets the flat-screen TV when a de facto relationship ends, and how long do you need to be in a relationship to be classified as de facto. A registered relationship is one registered under Australian state or territory law. This includes civil unions and is. In Queensland, defacto couples can register their relationship. There's no single legal definition of a defacto relationship as there are different requirements for.
A de facto relationship means a relationship between a woman and a man, or a woman and a woman, or a man and a man, who: A de facto relationship ends if the two people cease to live together as a couple. How long must we have lived together to be covered by the equal-sharing rules?
The equal-sharing rules apply to your marriage, civil union or de facto relationship only if you have lived together for at least three years.
A marriage, civil union or de facto relationship of less than three years is called a "relationship of short duration", and in general is not covered by the equal-sharing rules. What if a married or civil union couple were in a de facto relationship immediately before? In that case the length of the de facto relationship is counted in determining whether or not the marriage or civil union is of "short duration".
For example, if a couple have been married for two years but also lived together as a de facto couple for two years immediately before that, the couple is treated as having been married for four years. Relationship property is divided equally, unless there are extraordinary circumstances that make equal sharing "repugnant to justice", in which case the relationship property is divided according to the contributions that each party made to the relationship.
In the assessing of the different contributions, financial contributions do not rate any more highly than contributions of other kinds, such as caring for children or performing domestic tasks.
There is just one rule for all relationship property - it is all divided equally unless there are extraordinary circumstances that make equal sharing repugnant to justice. Separate property remains separate In general, separate property that is, all property not classed as relationship property remains the property of the person who owns it and is not divided.
It includes - property that the parties owned before the marriage, civil union or relationship began and that they kept separate during it any gifts and inheritances that the parties received during the marriage, civil union or relationship and that they kept separate Separate property also includes all property acquired out of separate property, and the proceeds of selling any separate property.
But if an increase in the value of one party's separate property, or any income or gains derived from the property, is caused wholly or partly by the "application" of relationship property, then the increase, or the income or gains, is relationship property, not separate property.How to Define the Relationship
Similarly, if an increase in the value of one party's separate property, or any income or gains derived from the property, is caused wholly or party by the actions of the other party, the increase, or the income or gains, is treated as relationship property, and is divided according to each party's contributions to the increase.
This applies whether the other party's actions caused the increase directly or indirectly. Some de facto couples choose to draw up financial agreements before or during their relationship, which are similar to the well-known "pre nuptial" agreement. In a similar way, separation agreements can be drawn up in anticipation of, or immediately following a relationship breakdown. For these agreements to be legally binding, both parties must have signed the agreement and have received certain independent legal and financial advice before signing.
Consent Orders In the case that there is a dispute, it is always advisable to enter into mediation. If an agreement can be made, it is then possible to apply for Consent Orders through the Court, which formalises the agreement. This is dependent on whether the Court is satisfied that the agreement is "just and equitable" to both parties, and that both parties have sought independent legal advice. If an agreement cannot be reached, you can apply for property orders.
For situations where there has been no prior financial agreement, parties of a de facto relationship or a close domestic relationship can apply for property orders. Applications for property orders must be made within 2 years of the end of a relationship. The decision is then made through a court hearing. Both parties are expected to fully disclose their respective financial circumstances.
A failure to make proper disclosure of a relevant matter is taken very seriously.
Defacto and same sex relationships - Legal Aid Queensland
The Court considers four key factors in assessing property settlements. The Court will ascertain the net asset pool of both parties. The net asset pool is the total value of all the assets owned by either or both parties.
The net asset pool includes anything acquired before or during the relationship, as well as after separation. In ascertaining the net asset pool, the Court will also consider other financial resources over which a party has influence, control or prospective entitlements.
Ascertaining the net asset pool can be highly complicated.
Accurate valuation of assets requires that many factors are taken into consideration, such as issues regarding taxation, stamp duties, and the appreciation or depreciation of asset values. The Court will assess the contributions from both parties both financial and non-financial.
There are many types of contributions that may have been made by either spouse. The Court considers all of the following: The Court takes into account many factors when deciding on the future needs of both parties.
Age and health b. Capacity to earn money c. The property and assets of each party d. New relationships and new financial circumstances e. Future parenting responsibilities care and support The Court will consider the practical effect of the proposed property settlement, and whether it is "just and equitable" to both parties. The decision is made taking into account all of these factors. How we can help you with your property settlement Reaching a property settlement can be complex and stressful, whether it is carried out through a financial agreement, consent orders or in a court hearing.
Armstrong Legal are Australian Family Lawyers who specialise in property settlements for de facto relationships. The advice you can expect from us is both personal and practical, being tailored to your needs. It is not mandatory to obtain evidence from independent professionals to reach a decision that a person is not a member of a couple.
A thorough investigation is to take place before a decision is made, and where possible all evidence is to be verified by external sources in writing. Unless evidence is available, the decision maker should not form an opinion that a person is a member of a couple. Moral judgements or suspicions are not relevant to the decision. Factors to consider for investigating de facto relationships The 5 factors to be considered in establishing whether a de facto relationship exists are: Making a determination that a person is a member of a couple requires that the indicators for a de facto relationship outweigh the indicators that the person is not in a de facto relationship.
All 5 factors must be considered. No single factor should be seen as conclusive and not all factors need to be present. For instance, the presence or absence of a sexual relationship is considered but does not, by itself, indicate whether or not a person is a member of a couple. Different groups in society have different views about what constitutes a de facto relationship. Each case must be considered on its own merits, giving consideration to cultural background including gay, lesbian, bisexual and transgender cultural issues, ethnicity and religious beliefs when making a determination.
Financial aspects of the relationship The degree of financial interdependence, including whether arrangements for paying household expenses such as electricity, water, food or telephone are indicative of one person providing financial support for the other. Important indicators to consider: Whether both names are listed on tenancy applications, lease agreements, or mortgage applications.
Whether one or both parties are providing financial support to the other, directly or indirectly, e. Whether there is joint ownership of major assets. Joint ownership of only a few small items such as a television or kitchen appliances is not a strong indicator of financial interdependence. If there are joint liabilities, e. Whether one party is nominated as a beneficiary of a will, life insurance policy, superannuation payment or compensation payment.
Whether there are joint bank accounts. Whether one party has a right to enforce obligations in respect of the other, such as being a guarantor for a loan for the other person.
However, it is likely most couples in a de facto relationship will be financially intertwined in some way. People who share 'sharers' often split financial costs. The cost of accommodation is a major reason why people who are not in a de facto relationship share accommodation and household expenses.
People may also share accommodation, as they want the companionship of another person, or for other reasons such as physical and personal security and assistance with home maintenance. Sharers usually share equally the costs of rent, utility bills and basics such as bread, milk, toilet paper, cleaning items, etc. Nature of household A person who is considered to be living in a de facto relationship will generally be living under the same roof as another person. If one person is absent from the home it must be determined if the absence is temporary, or permanent.
If a couple's home remains the home of an absent partner then the couple is still considered to be living in a de facto relationship. If one member of the couple is away on holidays but will be returning to the shared home, they are considered to be living together in a de facto relationship.
If one person's employment results in their frequent absence from the home and is the only reason for their absence, the couple is considered to be living together in a de facto relationship.
Occupations requiring frequent absences from home include truck driving, rigging, mining, commercial fishing, service in the defence forces and army reserves. Finding - the parties are 'not living separately and apart on a permanent or indefinite basis'. Two people have been in an ongoing intimate relationship for 8 years but live at separate addresses.
Although the 2 are committed to their relationship and are perceived by family and friends to be a couple, they have no plans to live together as neither wishes to significantly alter their lifestyle. The couple have separate bank accounts but often pool their resources for holidays, bills and meals, and they share ownership of a holiday home.
Finding - the parties may be considered to be in a de facto relationship, despite not living together, as they have an intimate and ongoing relationship, are recognised socially as being in a relationship, and pool resources in certain situations. Usually one party moves out of the home as a result of the separation.
Family Court of Australia
The usual occupants in the house and the relationships between them. The physical set-up of the household, which may indicate that both parties share a bedroom and common living areas. How the household chores are shared, including whether one does the cooking, cleaning or washing for the other person.