If you and your partner were only in a de facto relationship for a couple of years, you may still be entitled to a property settlement, regardless of whether or not you were married.
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How long do you need to have been together to be entitled to a property settlement?
Generally speaking, to be entitled to a property settlement, you need to prove that you were in a de facto relationship for at least two years, unless you have a child together.
The rules for determining how property should be divided in a short relationship are no different to those of long relationships.
However, it is ultimately up to the judge and their discretion to decide if your relationship was in fact a defacto relationship and if a property settlement is appropriate. To do this, they will consider a variety of different factors, including:
- The duration of the relationship – if you lived together for two years or more.
- Whether a sexual relationship existed or if you shared a bedroom.
- If there were children involved in the relationship.
- The extent you shared residence (full-time sharing of a residence is not a requirement)
- The degree of financial interdependence – if you had shared bank accounts or assets.
- Whether the world at large would have considered you to be in a relationship.
- Mutual commitment to a shared life – things like travel, attending events together, saving for a property together, and contributing to each other’s assets.
If you were in a de facto relationship, you have two years from the date of separation to file property settlement proceedings. If you are married, you must file within twelve months of the date of divorce.
How the court determines who gets what
First and foremost, the court must be satisfied that it is ‘just and equitable’ to order a property settlement. To do this, they will consider four key factors:
- The value of assets, liabilities and superannuation at the date of any hearing;
- Each person’s contribution to the asset pool, including initial contributions, financial contributions, non-financial contributions, and contributions as a homemaker or parent;
- Factors that may warrant an adjustment in favour of one party including differences in age, income, health, earning capacity, and the care of the child.
- The division of property is just and equitable.
In a short relationship (generally considered to be less than five years), the court:
- Will more closely consider the financial contributions of each party, including how assets were acquired, maintained and improved, particularly if there are no children in the relationship.
- Will place greater weight on the initial financial contributions to the relationship, particularly if the assets have remained relatively similar during the relationship.
- Is more likely to return each party to a similar position to what they were in before they entered into the relationship – particularly if the contributions of one party were significant and continue to make up the majority of the pool.
Case in point
Rose & Mitchell [2016] FCCA 771 highlights how property may be divided in a short relationship, where one spouse contributed significantly more than the other.
In this case, the husband and wife lived together for a little over three years.
Their asset pool was modest, with the main asset being the matrimonial home, which the husband bought and paid for entirely.
During the marriage, the wife was the primary caregiver of their one child.
The judge determined that 90% of contributions were made by the husband and 10% by the wife.
Given that the wife had more significant future needs by way of parenting responsibilities, she was awarded a 15% adjustment. As a result, 75% of the asset pool was awarded to the husband and 25% to the wife.
Recently separated?
If your relationship was short and you have recently separated or divorced, we can help you understand what you may be entitled to as part of a property settlement.
The team at Lakey Family Law has significant experience in all matters related to property settlements and can advise you on how the law applies to your specific circumstances – contact us for an initial, obligation free chat.
