In Victoria, de facto property divisions are affected by the same laws and legal principles as apply for married couples when they separate and divide their property. These laws and legal principles are covered by the Family Law Act 1975.
A de facto relationship is defined as a relationship between two people (including of the same sex) who are not legally married or related by family and having regard to all of the circumstances of the relationship, they have a relationship as a couple living together on a genuine domestic basis.
All of the circumstances of the relationship that go to determine whether a couple have a de facto relationship include:
- the duration of the relationship;
- the nature and extent of their commence residence;
- whether a sexual relationship exists;
- the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
- the ownership, use and acquisition of their property;
- the degree of mutual commitment to a shared life;
- whether the relationship is or was registered as a relationship under the laws of a State or Territory that allows for registration of relationships;
- the care and support of children; or
- the reputation and public aspects of the relationship.
The Family Law Court or the Federal Magistrates’ Court can make orders dividing the couple’s property if:
- the period of the de facto relationship is at least 2 years;
- there is a child of the relationship;
- one of the partners has made substantial financial or non-financial contributions to their property or as a homemaker or parent and serious injustice to that partner would result if the order was not made; or
- the de facto relationship has been registered in a State or Territory with laws for the registration of relationships.
Court orders include orders made by consent.
De Facto couples can also enter into Binding Financial Agreements as an alternative to filing consent orders with the Court, or making an application to the court for court orders as to financial matters.
De Facto couples must apply to the Court for Financial Orders within 2 years of the breakdown of their relationship. In limited circumstances the Court will grant leave for an application to be made out of time.
For more information or to discuss your individual Family Law circumstances, including de facto property divisions, please contact our friendly and professional team at Peter Speakman & Co on 9822 8611.