If a defacto couple separate any property dispute must be:
- Decided under the Family Law Act; and
- Dealt with in the Family Court or the Federal Circuit Court of Australia.
Under the Family Law Act, in deciding a property dispute, the Family Court or Federal Circuit Court of Australia take account of variety of matters including:
- The assets and liabilities each of you had at the start of your relationship;
- What you each contributed during your relationship (this includes direct and indirect financial and non-financial contributions);
- Whether either of you has the care of a child, including a child of your relationship;
- Whether circumstances during your relationship have affected the earning capacity of either of you.
- What financial resources you each have.
- How you have conducted the financial aspects of your relationship (for example whether you had joint bank accounts, how you met the payment of bills and household expenses)
- Whether either of you have the care of children
- Your respective financial circumstances after separation.
The above is a summary and is not an exhaustive list.
The court then looks at the pool of assets and liabilities of both of you at separation and decides how that pool should be divided between you. All assets and liabilities are usually taken into account, regardless of whether they are in both names or in the name of one person only.
What about our superannuation?
Superannuation of each person is included in the pool of assets divided by the court.
The court has power to make a superannuation splitting order as part of the division of the pool of assets and liabilities. A superannuation splitting order is an order transferring all or part of the superannuation entitlement of one person to the other person.
For example if Mary has superannuation worth $200,000 and Joan has superannuation worth $600,000, a court might order that $200,000 be transferred from Joan’s superannuation to Mary’s superannuation to make their superannuation entitlements equal. Please note, this does not mean that a court will decide that all superannuation should be divided equally, the type of superannuation splitting order, if any, that a court might make depends entirely on the particular circumstances of each case.
Can my ex-partner claim maintenance from me?
The commonwealth laws allow the Family Court or Federal Circuit Court of Australia to order one person pay maintenance (called spousal maintenance) to the other person. Whether a court might make an order for spousal maintenance depends on the particular circumstances of the parties.
What if we reach agreement about the division of our property after our relationship ends?
If you and you former partner reach agreement about the division of property after you separate, that agreement can be formalised by:
(a) a Binding Financial Agreement;
(b) Consent Orders filed with the Court.
A post-separation Binding Financial Agreement is not lodged with the Court and is not approved by the Court. Each party must have separate independent legal advice about the Agreement.
Consent Orders are lodged with the Court and must be approved by the Court.
Can we make an agreement about our finances before or during our relationship?
A defacto couple can enter into a Defacto Relationship Binding Financial Agreement at any time before they start living together or during their relationship to record how their property was to be divided if they separated.
Important note If a defacto couple have a Defacto Relationship Binding Financial Agreement and they get married, the Agreement is automatically cancelled. In this situation a new Matrimonial Binding Financial Agreement must be entered into under the Family Law Act.