De Facto Property Settlements

Dividing Your Assets

There are two mechanisms by which de facto couples can divide their assets – Binding Financial Agreements and Property Consent Orders.

Binding Financial Agreement

A Binding Financial Agreement (‘BFA”) sets out how property, financial resources or spousal maintenance is to be distributed. BFA’s can also dismiss future income claims, however for this to come into effect the party dismissing the income claim must be able to support themselves without a means-tested benefit or pension.

BFA’s can be made before, during or after a relationship has broken down. When drafted in accordance with the Act,[1] a BFA circumvents the jurisdiction of the court, allowing the couple to ‘contract out’ of court processes, thereby saving time and legal costs. However, the court may set aside a BFA in some circumstances.[2]

To make a BFA legally binding and enforceable, it must include a signed statement that each party has received independent legal advice with respect to how the BFA affects their rights and whether the BFA provides them any advantage. The party’s solicitor must also produce a certificate that states they provided independent legal advice to that party.

[1] Ibid s 90UJ.

[2] Ibid s 90UM.

Property Consent Orders

Consent orders are an agreement made by consent of the parties and filed with the courts on application. The court will consider the orders and settlement to ensure they are “just and equitable”.

The process involves both parties preparing various court documents which, amongst other things, identify their assets and the value of those assets. The parties will also need to identify any liabilities, such as credit card debts or mortgages.

The assets and liabilities form part of the overall property pool, which is then usually divided as a percentage between the parties. The orders must be fair in order for the court to consider and approve them.

Consent orders differ from BFA’s as the parties do not need a certificate of legal advice to make the orders binding. Also, consent orders do not dismiss future income claims.

If You Can’t Agree

If you and your former partner cannot reach an agreement on how to distribute the property even after attempting dispute resolution, you may require the court’s intervention.

Either party can apply to the courts for financial or property orders. This will involve a hearing where the court will review the evidence and decide on a division of assets that is just and equitable. The party’s individual or family circumstances will be taken into account, so each settlement is unique.

In deciding a property settlement, the court will consider:

• Assets held by the parties jointly and individually.
• Direct financial contributions by each party.
• Indirect financial contributions by each party.
• Non-financial contributions to property.
• Contributions to the welfare of the family.
• Each party’s future needs.

Time Limits

Strict time limits apply. De facto couples have 2 years from the date the relationship ends to apply to the courts for a property settlement. After 2 years, they will need permission from the courts to apply.

Need guidance through your separation?

The laws surrounding de facto property settlements are complex – every case is unique. It is crucial you obtain trusted and accurate legal advice from experienced family lawyers.

Our team is here to guide you every step of the way. If you need assistance with separating your assets, reach out via our contact page or give us a call. We’re here to help.