What should I do after I separate from my de facto partner?

De facto Separations

For all intents and purposes a de facto relationship is treated the same as a married couple. There are some minor differences however, the issues that a Court is required to consider under the Family Law Act are similar.

However when couples in a de facto relationship separate there are certain criteria that must be met before a property settlement can be made.

What is a de facto relationship?

A de facto relationship is defined under the section 4AA of the Family Law Act 1975 and is where you or your partner have lived together as a couple on a genuine domestic basis.

How long do you have to live together to be a de facto?

The time main time limit to establish that a de facto relationship existed is two years as being a couple on a genuine domestic basis. See the full criteria here.

Some of the criteria are outlined below.

You must satisfy these before being eligible for a Court to hear your property settlement matter:

• there was a genuine relationship; and
• ONE of the following “gateway criteria” applies:
  • The relationship is at least 2 years: or
  • You have a child; or
  • If a significant financial contribution from one party has been made; or
  • It is a registered relationship;
  • You have a geographical connection to a participating jurisdiction; and
  • Your relationship broke down after 1 March 2009.

What should I do after I separate?

Firstly, you should consider you and your families immediate living arrangements particularly if you have children. Some couples can continue to live together for some time and others can’t. Many factors such as financial independence play into this decision. If you have fears for your safety then please immediately contact Victoria Police. If needed you can be separated and live under the same roof.

Secondly, a time limit applies of two years from after you separate from a de facto relationship to finalise your property matters.

This means that if the two year time limit is approaching you will need to act quickly. There is no similar time limit if you have children together.

For those that move out, making arrangements for the care of any children and financial decisions will be paramount. You can start by doing this together. If you are uncertain about what you are entitled to you should seek advice from a family lawyer regarding your separation. We offer a confidential initial meeting that is designed to give you real advice about your situation.

Seeking family law advice is not necessarily starting legal action, it is getting informed by an expert de facto lawyer who handles de facto separations on a daily basis. You will get reliable legal advice about your individual circumstances and getting a plan to be able to move forward with certainty.

The information you obtain will be able to guide you in your decisions and help you navigate the process of your de facto separation with less confusion. Each family law matter is unique.

For financial matters many people will make a binding financial agreement (BFA) or submit an Application for Consent Orders to the Family Court. Both options are binding and will bring finality to your matter.

For those that cannot agree on children or financial matters then you will need to obtain further legal advice. Most matters proceed that to mediation and are settled in a conciliatory way. Depending on the complexity of your matter this may take some negotiation skill.

If you are unable to agree on a property settlement, the last resort is to proceed to court for a final decision by a Judge. Most matters will still settle at mediation or through negotiation and do not end up at this final step, however having the right advice can pre-empt and help avoid a long-protracted dispute. In some instances, Court is the only solution and if needed we are ready to fight the matter for you.

Family law is always a balancing act of fighting for what you are entitled to and getting a settlement you can live with. Getting the right advice is critical at each stage as every matter is unique and there is no one size fits all in family law.

Our family lawyers at PCL Lawyers have extensive experience in helping clients understand their rights and navigate the family court processes.

We understand the impacts of good family law advice have on our client’s financial, emotional and family circumstances. We work hard to ensure our clients are well advised and have the best representation to get the best possible results.

To speak to a family lawyer about your options call us on 1300 907 335 or complete an online enquiry form and we will respond promptly.

About The Author - Theresa Morgante

Theresa is a Senior Associate of our Family Law and Estate Planning practice groups. Theresa's practice includes acting for clients across a broad range of complex family/relationship matters as well...