What happens to the property when de facto relationships break down?
As we delve further into the 21st century it seems that a greater number of the population are moving away from what would be considered the ‘traditional’ lifestyle choices of the past.
Seemingly gone are the days where young couples remained living with their respective families until they first get married, then move into their own home and then begin a family.
Whilst that is not to say that this is still not the case for a proportion of the community, we are increasingly seeing more and more young couples deciding to purchase a home or start a family before getting married. At the same time, older couples are getting divorced and a number of people, both young and old are choosing to live in de facto relationships rather than making the legally recognised commitment of marriage.
Society is adapting in its acceptance and integration of these new ways and consequently legislation and other regulatory processes have been and continue to be amended to in order to accommodate the changes.
Consequently, as with legislation that determines what happens when marriages break down, it has become necessary to implement laws that govern various aspects of de facto relationship and their break downs as well.
Perhaps the biggest problem to face for de factos who are breaking up is what to do with the property, or sometimes even properties, that they own together. Earlier this year, 1 March 2009, laws governing the division of property for people in de facto relationships that break down were enacted.
Governed by the Family Law Act 1975, the newly introduced laws see separating de facto couples brought under the current federal family law regime for property and spouse maintenance matters. Essentially, this means that de facto couples can now access the Family Court of Australia and the Federal Magistrates Court alongside married couples for these issues. De factos could previously only use the federal family law regime for matters involving their children (since 1988).
The new laws enable the Family Law Courts to order the division of any property that a couple owns, either separately or together with each other, as well as the split of the superannuation held by each partner and spouse maintenance.
In order to have the conditions of the new legislation applied to any post 1 March 2009 break ups, one of the following criteria must be satisfied:
- the period (or the total of the periods) of the de facto relationship is at least 2 years
- there is a child of the de facto relationship
- one of the partners made substantial financial or non-financial contributions to their property or as a homemaker or parent and serious injustice to that partner would result if the order was not made, or
- the de facto relationship has been registered in a State or Territory with laws for the registration of relationships.
What is considered a de facto relationship?
According to Family Relationship Online, an Australian Government website,
“A de facto relationship is a relationship that two people who are not married or related by family have as a couple living together on a ‘genuine domestic basis’.
It can exist between 2 people of the opposite sex, or between 2 people of the same sex.”
Whilst it is a federal family law regime, the new laws apply to relationships that have a geographical connection with New South Wales, Victoria, Queensland, Tasmania, the Australian Capital Territory, the Northern Territory or Norfolk Island.
Previous to the introduction of the new laws these types of matters were handled by the relevant State and Territory laws. As a result, it is important to be aware that relationships that broke down prior to 1 March 2009 and in any State that is not listed above, the relevant State or Territory laws generally still apply to those cases.
Although, for relationships that did breakdown prior to 1 March 2009 couples may choose that the new federal laws be applied to them. In order to do this the choice must be in writing and signed by both parties. This can only happen after each person has obtained independent legal advice and has a signed statement from their lawyer confirming that the advice was given.
Notably, it is also possible for a separating couple to choose not to be governed by the new laws in the event of their break up. In this case, the couple can make an agreement which outlines how they will distribute their property and the details of any necessary maintenance payments that are required if the relationship was to ever break down. Known as ‘binding financial agreements’, this type of arrangement can only be entered into once both parties have obtained independent legal advice and can be done at the beginning or even during the course of a relationship.
Relationship and marriage break downs can be emotional and stressful times especially when property and children are involved. The new federal laws aim to make the system easier to navigate for those that need to make use of it however it is still very complex and every situation is different. If you need advice in regards to property division or other family law matters, contact the lawyers at The Quinn Group by calling 1300 QUINNS or click here to submit an online enquiry form.
Anne says:
Thank you this was very useful, but what about assets that were not owned together, that were purchased before the relationship? Are they entitled to this to!
February 8th, 2010 at 11:11 pm
Michael Quinn says:
Hi Katiya,
I am sorry to hear that.
You are able to contest this, however you will most likely need to go to court.
Someone from my office will contact you shortly.
April 9th, 2010 at 2:57 pm
Michael Quinn says:
Hi Anne,
Thanks for your feedback.
This will depend on the length of the relationship?
April 13th, 2010 at 12:18 pm
Daniel says:
Hi my name is Daniel and i’m basically doing some research for my mum,
She has been in a de facto relationship for 25 years with my step dad, she has basically not worked in that time as she was an at home mum to myself and my brother from a previous marriage also my step brother (step dads son) and later they had a child together.
He has her brain washed that if he told her to leave that, and i qoute ” she would be up shit creek without a paddle”! he has this idea that because they aren’t married that she isn’t entitled to a single cent, even though he wanted her to stay at home to be a house wife!
Mum has recently battled serious cancer, and combined with the fact that she hasnt worked for so long, therefor has no skills, and she is 53 years of age, I seriously doubt she would be able to fined gainful employment to financially look after herself. Having said that do you believe she would be entitled to spousal maintainance or a portion of the property and his super?
Thanks for your time
Daniel
July 31st, 2010 at 9:53 pm
Michael Quinn says:
Hi Daniel
Someone from The Quinn Group will be in contact with you shortly.
Thank you for the enquiry.
Kind Regards
August 2nd, 2010 at 2:52 pm
Eve says:
I’ve been in a long term relationship for 11yrs (since high school) I am now 25yrs old. We purchased a house and moved in together just over a year ago for the first time ever. Things are not working out. Are we considered de facto’s?
September 3rd, 2010 at 6:22 pm
Craig says:
Hi i have been with my partner for 10 years and i had bad credit history so when we brought a home it had to go in her name , but th cars r in joint name ….
we brought the home 6 years ago nd have both lived here as defacto since
am i entitled to anything??
October 17th, 2010 at 3:53 pm
Michael Quinn says:
Hi Craig,
Someone from our office will be in contact with you shortly.
Kind regards,
October 20th, 2010 at 1:35 pm
Niamh says:
Hi there,
My defacto partner of 6 years died. Unfortunately she was an alcoholic and the resulting behaviour put severe strain on a functional relationship. I told her I would leave unless she went into rehab which she would not do.
She nominated me for 75% of her superannuation and her parents for 25%. The Superannuation company has ruled for 100% in my favour and the parents wish to dispute this, saying the relationship had broken down.
Yes, the relationship had broken down, however I was still living in the house paying my 50% of rent and 95% of the bills and 100% of our car (she was unable to pay bills for over a year as she spent the money on alcohol instead). The fact that my defacto partner was an alcoholic resulted in a dysfunctional relationship full of lies and deceit on her behalf and sever financial issues as a result, and technically at the time of her death I said I could not stand by anymore and watch her kill herself. So ‘technically’ I was not her partner for the week before her death. However I stood by and paid bills to the date of her death and after her death, and also paid to have the house cleaned and paid for a skip to discard 6 years of our house rubbish after her death.
Do her parents have a right to deprive me of the superannuation based on the technical fact that I couldn’t take anymore and was not not ‘technically’ her defacto partner for a week before her death? This superannuation is much needed by me to clear me of joint debt I accrued with my defacto partner. I had offered the parents a verbal agreement of 50/50 to end things amicably, however the parents have disputed and seem to want 100% and they said they would obtain Stat Decs to state I was not in a defacto relationship for the week before her death.
Any help would be much appreciated as I just want this matter to be done and dusted.
Thanks in advance,
Niamh
January 9th, 2011 at 11:45 pm
Michael Quinn says:
Hi Niamh
Thank you for your enquiry.
Someone from our office will be in contact with you shortly.
Kind Regards
January 11th, 2011 at 1:53 pm
Leon says:
I’ve been dating a girl for over 2 years and have rented a place for 6 months now. I plan to buy a house soon out of my
Own money and she will pay some rent to me. Not that I think it will happen but if we break up in a years time does she have any right to half of my property even tho 100% of the place is owned and paid by myself?
Obviously up keep/cleaning will be done fairly as we both will be working.
Any advice will be great.
Thanks
February 19th, 2011 at 10:12 pm
Michael Quinn says:
Thank you for your enquiries!
Someone from our office will be in contact with you shortly to assit you!
Kind Regards,
Michael Quinn
February 23rd, 2011 at 10:17 am
Brad Goodwin says:
Brad says:
Hi i have been with my partner for several years and when we brought a home it had to go in her name, I am noted on the loan that $25000 was loaned from me for the deposit.
we brought the home 3 1/2 years ago and have both lived there as defacto since,
My children are over 16 and her children don’t reside with her the father has permanent custody but they are alos over 16.
am i entitled to anything??
March 30th, 2011 at 1:01 pm
Michael Quinn says:
Hi
Thanks for the enquiries, a member from our office will be in contact with you shortly.
Kind Regards
March 30th, 2011 at 1:41 pm
Jamie says:
My friends and her partner recently split, they were de facto and the house was in both names, however he had no contribution to the house, financial or otherwise, he never helped out with housework or bills, does she have to give him anything?
May 17th, 2011 at 1:29 pm
Michael Quinn says:
Hi Jamie
Thank you for your enquiry. Someone from our office will be in contact with you shortly.
Kind Regards
May 18th, 2011 at 1:38 pm
Jane says:
Hi, I have been with my partner for 7 years. During that time he bought a house with his parents which we lived together in for 4 years or so. He paid the mortage and bills I paid for all the house hold items like groceries etc. Am I entitled to anything? Most of the furniture he already had before we moved in.
Thanks
June 20th, 2011 at 6:54 am
Joanne says:
Hi, I have been in and out of a relationship for the last 2 years. My ex and I purchased a home in both names however I did not put any money into the home.
I don’t want him to lose what he put into the house, can I leave it all to him or will the law say it is 50/50?
Thanks
July 9th, 2011 at 9:49 pm
Naomi says:
Hi,
My relationship is over due to domestic violence, we were together only 18 months and lived together for 12 months out of that. We have a baby together, do I have any claim on his property?
September 16th, 2011 at 11:08 am
Krystal says:
Hi,
I have owned a unit for 2 years now. I am thinking about moving out with my partner into a rental property and renting my unit out. If something was to happen in our relationship, would he be entitled to my unit?
September 22nd, 2011 at 2:37 pm
Ryan says:
Hi,
My partner and I have been together for about 2.5 years, having been engaged in June this year. Things aren’t looking so good, as she does not contribute nearly enough financially or in terms of domestic chores.
We bought a property in June last year, and although she contributed about 40% of the total purchase price + duties, I had to get a loan for the remainder in my name for the rest as she had bad credit.
Where do i stand? how do we strategise an equitable option should things continue to go pear shaped?
October 17th, 2011 at 9:02 am
elize says:
Hi,
i been in a relationship for 11years and we have a child together, we bought a house 2yrs ago and car but all put under his name as he spend his own money for the property.. For the last 11yrs i did not work as i have to take care the kids and our household i dont have any income all our financial come from him.. do i have any claim to his property?? Because he told me that if i leave him i wont get any single cents as i dont contribute any amount on the property.. Pls advice!!
December 3rd, 2011 at 2:43 pm
John says:
Hello, my partner and i were originally together for almost 7yrs and engaged for almost 2 of them, at the begining of the year she was seeing and left me for another man and moved him into the house almost within a month after we seperated (we bought together in dec 2010) after almost 6 months we got back together and she cheated on me with the same man and now we have seperated again after almost 2 months being back in a relationship …
what are my rights and what am i entitled to?
its pretty complicated as there are more details
December 5th, 2011 at 6:59 pm
Ken says:
Hi,
MY partner and I have recently split up after 19 months. I have been the major contributer for all the bills, cars and house. She has contributed next to nothing but stayed at home. We have no children. Is she entitled to anything?
December 6th, 2011 at 10:52 am
Alice says:
Hi Michael,
Not planning on breaking up with my partner at all, but who in a live in relationship does plan on it? Just looking for advice if the worst were to happen. I live with my partner in a defacto relationship and have done so for the last 2 years. Since we have been together he has purchased 1 house, and had another before i moved in. We have 2 children together, soon to be 3 but everything is in his name including the car, all bills and insurance. I stay at home looking after the children and plan to for as long as they are living at home. We have separate bank accounts where i keep the savings the government gives me for the boys.
Just wondering should we separate in the future if i have a claim to any of the assets he has accumulated. One of the properties needed a new roof so i gave him $5,000 and will need new wiring soon, also i would like to do some renovations but dont want to give him a bucketload of money i have saved myself if it is going towards a house i have no claim over.
Should we make some kind of written agreement or get my name put on the deed by a conveyancer before i go investing more of my (and the childrens) money into this house, or will it all be divided fairly should we separate? (Obviously my only concern is the children having somewhere to live, as i wont be able to go back to work for some time after they mature, and would never be accepted for a mortgage or anything of my own having been a stay at home mum since leaving highschool. I also have never had a need for a credit card or loan, therefore have no credit rating.
Thankyou for any feedback.
December 12th, 2011 at 6:39 pm
Jessica says:
Hi,
I own a property which I rent out and that rental income covers the entire mortgage repayments and costs involved.
If I buy a second property and go 50/50 with my partner (say we live there for two years & then split) would he be entitiled to a portion of my first property as well as half of the place we bought together? I really don’t want him to have claim to my first property as my deceased father helped me to purchase it. It has significant sentimental value! My partner has no assets.
Also, if we got married and I still owed money on my apartment (even though rent covers it) if we split up down the track could he have claim to it? Or are defacto/pre nuptial agreements always binding even if you may be paying a mortgage for it?
January 18th, 2012 at 12:00 pm
melissa says:
Hi,
I have a 6 month old son with my de facto partner we have been paying half the rent each for just over a year am I entitled to anything he owns he doesnt contribute with our son in any way , he does own his own home, we just broke up recently.?.
January 25th, 2012 at 6:37 pm