What Is A De Facto Entitled To When Separated?

What is a de facto entitled to when separated? This question is an extremely common one for those who are in a de facto relationship and are going through a separation. While it is dependant on the individual circumstances of your case, there are some general rules that are applied in Family Law to give you an idea about what a de facto is entitled to when separated.

Is being in a de facto relationship looked at differently to marriage?
Absolutely not. A de facto relationship is dealt with the same as a marriage under Australian law. The length of your relationship is relevant to determining what a de facto is entitled to when separated however a 2 year de facto relationship is considered equivalent to a 2 year relationship of a married couple. The court will consider what has happened during that relationship, not whether the parties were married or not.

What if the house/car etc isn't in my name?
It does not make any different whose name the assets, or liabilities for that matter are. The court will consider all property like houses, cars, businesses, bank accounts, even superannuation, as joint property until they determine otherwise. So don't worry that the mortgage and house isn't in your name (and you didn't purchase it) because it can still be considered a joint asset.

How does the court determine what I am entitled to?
The court uses a four step process to determine what a de facto is entitled to when separated.

  1. Identify the property pool: this includes identifying the values of all assets and liabilities for both parties to figure out what is the total value of all property between the couple. This includes real property, bank accounts, businesses, cars, mortgages, personal loans and credit card statements.
  2. Look at contributions: the court will look at what each party contributed at the beginning and during the relationship. This includes financial, non-financial and contributions as parent or homemaker.
  3. Consider future needs: next it will be considered what each party needs going into the future. For example, whether there is a young child that one person has primary care of or if one party has any health conditions.
  4. Is it just and equitable: the final consideration is for the court to ensure that it is fair to make the proposed order.

How can I figure out what I am entitled to?
This will depend on your individual circumstances and, unfortunately, there is no quick answer to this. It is impossible to know what you are entitled to without speaking with a lawyer who can examine your case and give you proper advice about what a de facto is entitled to after separation. Many lawyers will offer free initial consultations so you are able to at least get an idea about you can receive. Check our our FAQs, How Much Does a Family Lawer Cost?, to get an idea about what your fees might be if you hire a lawyer.

If you really want to do this yourself, you can go through the four step process above to get an idea about what you might receive financially. For parenting matters you can check out our FAQs which address several aspects of parenting law in Australia. For both matters, you can have a look at the Family Law Act 1975, which outlines all the matters that the court must take into account when deciding cases.

Contact us for more information or to book a free legal advice session to find out your options.

This information does not constitute legal advice. You should consult with a lawyer to obtain independent legal advice relevant to your situation.

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