De facto property settlement lawyers.
If you’re ending a de facto relationship, sorting out the division of assets, liabilities, and superannuation can feel confusing and stressful. Our compassionate and skilled team of family lawyers in Adelaide and regional South Australia are here to provide clear, practical advice to help you secure a fair and just property settlement.
We understand that de facto property matters involve unique complexities and emotional challenges. You don’t have to face this process on your own.
Our experienced team will guide you through every stage of the de facto property settlement process, ensuring you understand your rights and obligations whether you’re negotiating an agreement or seeking Court orders. We’ll assist with identifying and valuing your shared and individual assets, assessing contributions from both partners, and considering future needs to help reach an outcome that is just and equitable.
With our knowledge and support, you can confidently navigate the legal complexities involved and formalise any agreements to protect your interests. Let us help you achieve a resolution that offers clarity and peace of mind as you move forward.
What is a de facto property settlement?
A de facto property settlement is an agreement between a separated couple about how they will divide their assets, liabilities, and superannuation interests after they separate.
The way property is divided between the parties to a de facto relationship after a separation is governed by the Family Law Act (1975).
There are time limits for de facto property settlements (which are explained below under the FAQs, “Is there a time limit?”)
How are de facto property settlements worked out?
First, it must be established that you were actually in a de facto relationship and the factors to consider in relation to that are:
> The length of the relationship;
> Whether there are any children of the relationship;
> Whether you and your former partner shared a residence;
> Whether a sexual relationship existed;
> The financial arrangements between the parties;
> How property was owned, used and acquired;
> Whether both parties were committed to a shared life;
> Whether the relationship was registered under a State of Territory;
> How any children of the relationship are cared for and supported; and
> How the relationship was viewed in the public space.
How we help you work out your de facto property settlement
We'll help guide you through each step of the de facto property settlement process, which typically involves:
Assess that it is "just and equitable" to make an adjustment of property.
Work out the net asset pool available for division.
This is done by identifying and giving values to all assets, liabilities, and superannuation interests – whether owned jointly or by just one person.
Identify the contributions made by each person and give them weight.
Contributions from the start of the relationship, during it, and in the period post-separation are considered. Those contributions can include financial contributions (i.e: taxable earnings, gifts, inheritances, and/or lump sum payments) as well as non-financial contributions (i.e: contributions made in the capacity of homemaker and/or parent as well as labour carried
out and skills applied in the renovation and/or maintenance of property).
Identify the future needs of each person and give those weight.
For de facto relationships, we carefully consider the factors listed in Section 90SF(3) of the Family Law Act (1975). Those factors include, amongst other things, considerations about age, health, income, capacity for work, and care of children of the relationship.
Ensure that the overall division (of assets in favour of each person) is just and equitable in all the circumstances of the relationship.
Frequently asked questions about de facto property settlements
Is there a time limit?
The parties to a de facto relationship have two years from the date on which they separated to negotiate a property settlement.
How do we reach an agreement?
The main pathways to reaching a property settlement are:
> Direct discussions between people resulting in a private, negotiated agreement;
> Reaching a negotiated agreement through the use of Family Dispute Resolution, a mediation service, and/or lawyers; or
> Using the resources of the Courts to come to a negotiated agreement or to receive a decision.
It’s important that you know that there are pre-action procedures for property settlement matters that are designed to help people resolve property settlement disputes without going to Court. We can help you to navigate and comply with those procedures.
What happens if we reach an agreement?
We recommend formalising any agreement reached to provide clarity about its terms. That tends to improve the chances of the agreement being observed and carried into effect.
There are two ways to make an agreement reached about property settlement issues legally binding:
> By completing an Application for Consent Orders and a Minute of Order (“a consent Order”); or
> By entering into a Financial Agreement.
When an agreement is properly recorded in a consent Order or in a Financial Agreement, it will be legally binding and enforceable.
That means, if a party does not comply with one or more of the terms of settlement, the other party will have access to specific legal remedies to enforce the terms of settlement.
What is a consent order?
It is an Order made by the Federal Circuit and Family Court of Australia that records an agreed division of assets, liabilities and superannuation interests.
The Order is signed by both parties and filed electronically with the Court together with an Application for Consent Orders.
As both parties consent to the terms of the Order, neither has to attend Court to have the Order made.
The Court Registrar must be satisfied that the terms of the Order are “just and equitable”. The Registrar will then sign, stamp and date the Order.
If the Court Registrar is not satisfied that the terms of the Order are just and equitable (or they consider it suffers from technical errors), they have the discretion to issue a requisition.
What is a Financial Agreement?
It is a written Agreement that must comply with very specific drafting and advice requirements (prescribed by the Family Law Act 1975).
A Financial Agreement:
> Records an agreed division of assets, liabilities and superannuation interests;
> Excludes the Court from otherwise determining an appropriate division of the assets; and
> Excludes the rights and entitlements that each party might have otherwise had
to a property settlement under the Act.
The Agreement is not subject to review by the Courts and, so, it is possible that its terms may not be fair to both of the parties.
What is the right way to document my agreement?
An experienced family lawyer will be able to determine whether a consent Order or a Financial Agreement would be best suited for your situation by identifying and taking into account your personal circumstances, terms of settlement, and overall objectives.
What happens if we can’t reach an agreement?
If you are unable to reach an agreement about how to divide the net assets of your de facto relationship, it is likely that you will need to make an Application to the Court for property settlement Orders.
Our experienced lawyers can help you to navigate any pre-action procedures that apply in your circumstances as well as the entire Court process, from start to finish.
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