If you are in a defacto relationship then the date that you and your partner separated is critically important.
If you separated on or after 1 March 2009 then the Family Law Act applies. You case will be heard by the Family Court or Federal Magistrates Court and the principals that determine how your property is to be divided is identical to those outlined for married couples.
If you separated prior to 1 March 2009 then The Property (Relationships Act) applies unless you and your former partner both consent to using the Family Law Act. The Property Relationships Act is different in many ways to the Family Law Act and is State New South Wales Legislation whereas the Family Law Act is an act of the Commonwealth.
If your matter comes within the Property Relationships Act then the Local, District or Supreme Courts of New South Wales will determine the matter as opposed to the Family Court or Federal Magistrates Court.
The main differences in the two sets of Legislation are:
- Unlike the Family Law Act, the Property Relationship Act only has three steps being:
- Step 1 – identifies the assets of the parties or either of them.
- Step 2 – assesses the financial and non-financial (direct and indirect financial contributions) made by the parties.
- Step 3 – The Courts must make Orders that are just and equitable.
There is no third step like that under the Family Law Act in that there is no assessment of whether or not either of the parties have any future needs. This can make a very significant difference if there are children of the relationship or whether one party’s ability to earn an income has been effected by the relationship.
Another significant difference is that ordinarily there are very limited grounds upon which an application for spousal maintenance can be made.
Superannuation is not treated as property under the Property Relationships Act and it cannot be split. It still however can be taken into account depending on whether the other party has made a contribution to the other party’s superannuation entitlements.
WHAT IS A DEFACTO RELATIONSHIP?
A defacto relationship is one between two people who live together as a couple and who are not married to one another, nor are they related in any other way. They can include same sex couples.
When considering whether a defacto relationship exists, the Courts have regard to several aspects including:
- The length of the relationship. Ordinarily a defacto relationship does not exist if it is less than two (2) years, unless there is a child of the relationship.
- Whether there is a sexual relationship.
- Financial arrangements.
- The living arrangements.
- Care of children.
- How much the couple have shared their lives.
- How others view their relationship.
Certain domestic relationships can also give rise to a property claim where two people live together in a close personal relationship, whether or not they are related, or where one person provides domestic support and care for the other, for example, circumstances where one party is cared for by another such as elderly parent being cared for by a child.
Pre requisites for making a claim:
- Generally both parties must have lived in NSW for a substantial part of their relationship.
- Both people must have lived together with at least two (2) years (except where there is a child or children).
- You can apply for a property adjustment even if you have not been living together for more than two (2) years if:
- You have a child together, or
- The person seeking an adjustment has made a substantial contribution to the property of the other party that would mean that it would be unjust for the Courts not to allow a claim to be made.
- The person seeking an adjustment is caring for the child of the parties and it would unjust for the Courts not to allow the claim.
Whichever Act is relevant the Family Law Act or the Property Relationships Act, proceedings need to be commenced within two (2) years of the date of separation, outside of this period, special permission needs to be obtained from the Courts to proceed with the case.
