Property Settlements & Financial Settlements

Dealing with relationship breakdowns

We understand that upon any relationship breakdown you may require prompt clarification of any number of issues.  To assist you in this process, we provide the following general legal information but bear in mind that each case is different and you will need to get specific legal advice on your own particular matter.

Some of the Family Law basics you need to know when separating:

Everyone has their own story to share with you when you separate. However, despite what you may be told, there is no ‘one size fits all’ model to say that everything is divided equally or that one party gets ‘everything’.

Your case will be treated based upon its own facts.  Every case is different and some facts will be relevant, and some will not.  Relevant factors will include your asset and liability position, initial contributions made and the contributions made throughout the relationship. Contributions can mean financial contributions and non-financial contributions.  Values will be placed on these assets and an agreed asset pool will then be considered for division.

A common myth is that the value of the assets and liabilities taken into consideration for distribution is represented by their value at the time of separation. Assets and liabilities are valued for family law purposes as at the date of the ‘deal’ or court hearing unless otherwise agreed.

If there is a business or company involved in the separation, an expert valuer or accountant may be required. Experts are not engaged without client authority or Court Order.

After defining the property pool and its value, there will be an assessment of each party’s contributions to determine how the property pool will be divided (in percentage terms). It may be the case that one party may have brought in significant assets at the beginning or during the relationship or there could have been an inheritance at some stage which also needs to be considered when assessing the level of contribution.

Children also have to be considered, employment capacity, income earning capacity, health, age and superannuation entitlements.  The length of the marriage or relationship along with many other factors are taken into account.

Finally, the proposed distribution of property needs to be fair and equitable.

Superannuation is treated as part of the matrimonial property, however there are different rules applied to de facto relationships in Western Australia when considering superannuation entitlements.

When is a relationship considered to be ‘de facto’ in Western Australia?

This relates to couples who have been residing together in a marriage-like relationship for at least two years. The Family Court of Western Australia also takes into consideration financial dependence, ownership of property and if there are children involved. A de facto couple can also be in a same-sex relationship.

If there is a child under the age of 18 prior to the two-year threshold having been reached, it may be deemed to be a de facto relationship.

If the partner applying for an order has made substantial financial, non-financial or homemaker/parent contributions then it may be deemed to be a de facto relationship.

The new legislation for de facto couples came into effect on 1 December 2002. This means that the Family Court can now determine the allocation of property and maintenance in de facto relationships. Parties’ de facto relationships that broke down before this date had to take their matter into the Supreme Court to argue, which was a very costly and time consuming process.

Can I enter into a Financial Agreement if I am in a de facto relationship?

Financial Agreements are now recognised and can be enforceable in the Family Court of Western Australia.

See the Financial Agreements section for more information.

Am I still eligible for financial maintenance if I was in a de facto relationship?

There will be a determination made as to whether there is an eligible requirement for financial maintenance.

Am I entitled to superannuation as matrimonial couples are?

De facto couples are not entitled to split or flag superannuation, however the Family Court will take superannuation contributions and maintenance requirements into consideration when determining how the property is divided between parties. The Family Court is required by law to consider superannuation entitlements of both parties when determining distribution.

How long after separation from a de facto relationship can I make an application to the Family Court of Western Australia for property settlement?

Parties have two years from date of separation to make an application for property settlement. After this time, a separate application for leave to apply must be made in the Family Court.

Can I settle my de facto matter without going to court?

Yes, you can make an Application for Consent Orders without the need to attend the Family Court. There are several requirements that you need to comply with to make this application if you are a de facto couple. There are also orders that you need to draft along with this application that usually require the assistance of a solicitor. Drafting your own orders can leave you vulnerable to recourse from the other party if they are not drafted correctly.

What if my partner dies during the relationship?

De facto partners do have a claim against the estate of the deceased partner. For more information please book an appointment with one of our family law solicitors. Alternatively, you can make a Will which determines the wishes of the party passing away for property distribution.

Disclosure

When attempting to resolve property disputes, it is a requirement that full disclosure of all of relevant financial information is provided or obtained so as to decide appropriate division of property. Without this, it can lead to an unfair distribution which can have the consequence of having Court Orders made by the Family Court challenged at a later date.

Relevant financial information may include assets in your name, assets and liabilities you may have had and disposed of in the past and other financial resources such as superannuation, damages claims, inheritances and interests in trusts and business entities.

If there has been fraud or duress in the course of arriving at a property settlement then this can also result in the Court Orders made being challenged at a later date. Always obtain legal advice on disclosure if you are unsure what information to provide.

Superannuation

As of 28 December 2002, superannuation is regarded as property and can be split either by agreement of the parties or by a Court Order. This allows separated couples to split superannuation in the same way as their other assets. The Family Court now has the power to order a split if parties do not agree.

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