There is common misconception that once you enter into a de facto relationship or a marriage that your partner is automatically entitled to half of your assets.
This is not the case. There is no such automatic entitlement.
How your assets are divided depends on a number of factors, and each matter is specific to your particular circumstances.
The first step in any property settlement is to ascertain exactly what are the assets and the liabilities to be divided and their value. This includes assets and liabilities held in either person’s sole name, in joint names, through businesses, trusts and even your superannuation entitlements.
In order to determine what sort of percentage division is appropriate in your matter, the Court (and lawyers when they are advising you) will consider the following factors:
- What were the direct financial contributions made by each person, such as what you came into the relationship with and earnings during the relationship;
- What were the indirect financial contributions made by each person, such as gifts or inheritances from parents or families;
- What were the non-financial contributions made by each person, such as performing the role of homemaker or parent; and
- What are the future needs of each person, such as their health and income earning capacity.
The Family Law Act 1975 sets out the above principles for the Court to consider. The principles are the same regardless of whether you are married or in a de facto relationship.
The Court must also consider whether the proposed property settlement is fair, or just and equitable to each person in the circumstances.
You cannot compare what kind of settlement might be appropriate for you in your circumstances against what has happened in a friend or family member’s property settlement. Every matter is different.
There are time limits associated with a property settlement and these differ depending on whether you are married or in a de facto relationship.
In a de facto relationship, you have two years from the end of your relationship to apply for a property settlement. In a marriage, you have one year from the date of your Divorce Order becoming final.
Ideally you and your partner will agree on the division of your assets, either directly or with the help of a lawyer. If not, the Court will determine the division for you.
If you require advice or further information in relation to any of the matters discussed in this article, please contact our Family Law team on 03 5273 5244.