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.
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!
Hi Anne,
Thanks for your feedback.
This will depend on the length of the relationship?
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
Hi Daniel
Someone from The Quinn Group will be in contact with you shortly.
Thank you for the enquiry.
Kind Regards
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?
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??
Hi Craig,
Someone from our office will be in contact with you shortly.
Kind regards,
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
Hi Niamh
Thank you for your enquiry.
Someone from our office will be in contact with you shortly.
Kind Regards
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
Thank you for your enquiries!
Someone from our office will be in contact with you shortly to assit you!
Kind Regards,
Michael Quinn
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??
Hi
Thanks for the enquiries, a member from our office will be in contact with you shortly.
Kind Regards
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?
Hi Jamie
Thank you for your enquiry. Someone from our office will be in contact with you shortly.
Kind Regards
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
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
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?
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?
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?
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!!
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
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?
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. 🙂
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?
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.?.
Hello
I am in a defacto relationship and have lived together for 6 years in which time we bought a unit. Although we have paid all common expenses such as strata, rates etc equally, he put in most of the money to pay the unit off. We have a Domestic Relationship Agreement which states 50% share – tentant in common. The agreement also states he gets $XXX which is the amount he paid. If he buys me out and I move out what exactly am I entitled to? What is taken into consideration?
Thanks
How many years do you have to be together to be entitled to half the house if it’s under your partners name
Hello
My mother has been in a defacto relationship for about 5 years now. They first lived at my mothers home, which she had owned before starting the relationship. Since then, they have moved a couple of times. Each time the house was purchased in my mother’s name because her partner did not contribute financially to purchasing the home. Obviously the home loan is also in my mother’s name, and she has been paying it off.
As such, her partner has not contributed financially to buying the home or paying off the home loan or even paying council fees or bills. He does give her money occasionally, but not on a regular basis. They both work, and manage their finances separately.
Anyway, my mother has written a will stating that upon her deathshe will leave all her assets including her home to myself (daughter). However, I have read somewhere that even if the will states that assets will be left to the daughter/son, defacto partners can make a claim against the will. Is this true?
If this is the case, my mother and I are considering adding myself as a joint owner to her home.
However, if laws are in favour of the will, we would like to save the tens of thousands of dollars that we would have to pay in stamp duty if we change to joint ownership.
I would grately appreciate your advice and knowledge
Thanks
Thank you for this informative blog. I’m in a situation living with a defacto for 10 mths and I’ve discovered they have considerable debts that I was previously unaware of. Being ready to buy a home with considerable equity already it has left me in a difficult situation. On one hand I love this person but also have to look after my financial future. Regards James
Hi my partner and I of 8yrs broke up about two yrs ago,,bought a house 7 yrs ago on my name which I’ve been paying all the mortgage myself, she had been paying gas and power bill,,her parents had helped us with the deposit of $22000, now we have split 2 yrs ago,now she wants all the deposit back,,is it right??? What is she eligible for??or what am I eligible to pay or not to pay???
I have been in a defacto relationship for the past 9 years. We purchased a house together approximately 8 years ago. We both contributed $15,000 towards the deposit and have been contributing to the repayments. As my wage has generally been higher I have been contributing more than my partner. In the last 3.5 years my partner has run a business and on paper it’s run at a loss, so I’ve contributed the majority if not all of the repayments. Now that we are in the process of breaking up would own the house 50/50?
Hi, Im being taken to court after living with a guy for only just three months is he entitled to half of my belongings mainly my car??????
Hi
my relationship has ended after 16 months and we have been living together for 1 year. he moved into the house that i currently ahve a mortgage for and he had been paying a certain amount per week as board/rent .
Is he entitled to anything?
Hi
I have a friend who had been in a de facto relationship for 7 years, they had broken up and she moved out about 6 months ago. He owns his house, but he has it in his fathers name because in a previous relationship, his ex girlfriend tried to take him to court to get his house. He’s worried now that this ex girlfriend will try to take him to court for his assets, because most of the furniture belonged to him, he owns a car, boat and Harly Davidson motorbike, and most of the furniture in the house. When they broke up, they agreed that she would only take what she owns and she can keep all the money she saved while living with him. Her furniture is still there now, and he is looking to start new with another girl, but his worried that asking her to move her furniture out will cause her to become nasty. Long story short, we just want to know whether if she would be able to take possession of any of his assets if it were to go to court.
Thank you 🙂
For the past 8 years I have been paying off a mortgage on my apartment which I had saved years & years for & spent a lot of money on furniture etc (I have been living in it on my own). If my boyfriend of 15 months were to move in with me (he hasnt been contributing to any bills etc as he is here quite often) & we break up, does he have any entitlements to my apartment? Does he just have entitlements if he contributes to some bills?
Or, if we decide to rent somewhere together instead (& I rent out my apartment) & we break up, is he entitled to any of my apartment?
I really wouldnt want to sell this place after working so hard for it to see half of it go to my boyfriend of a few months
Thank you
Thank you for your comment. Our office will be in contact with you shortly.
Hi, I have been living in a relationship for around two years we broke up around a year ago for a couple of months then gave if another try but it has not worked out. In the last year I have purchased a caravan and built an annex on the side of the van th total cost of this was around $40000 I am prepared to let my ex partner stay here but want to protect my asset so she can not sell it and take all of the profit. How do I do this?
Regards
Mark
Thank you for your reply Mark. Someone from our office will be in contact with you shortly.
I have recently bought a house with my partner where I have contributed the major part of the cost. Where do I stand in the event that we part ways after living together more than 2 years. Do I need an agreement of some type.
Thank you
Thank you for your enquiry. Someone from our office will be in contact with you shortly.
Hi there,
The ex and I were in a 10 year relationship, we bought a house which was under her name and we moved in together. We lived at the premises for a period of about 3 years.
About 2 years ago we were about to tie the knot. She had seen a phone number on a phone bill of mine which popped up a few times. Because of this she called off the wedding 2 weeks out. She had no proof that I was cheating. In say that I was not cheating what so ever.
Here’s the punch line, 4 months after she called off the wedding she was pregnant. The baby wasn’t mine thankfully.
a few weeks later I received a number of harassing phone calls from 2 different banks. I got them to send out my banks statements and to my surprise she had used them whilst overseas. Paying for expenses, accommodation etc. This was during the time when we were together.
I am now stuck with paying 3 different credit cards all because they were under my name.
Your help and advice will be greatly appreciated.
Thanks
Hi Seth,
Thank you for your enquiry.
We are unable to provide specific advice on this medium due to the nature of your enquiry.
We would be happy to arrange a meeting with one of our solicitors should you wish to take this further. It is important to understand that the costs of taking action on these sorts of matters can often outweigh the benefits.
Should you wish to have a more specific advice, please contact us on 1300 QUINNS to discuss your matter further.
Kind regards
Hi,
I am in a de facto relationship, and I am about to buy a house all with my own savings. I am still able to pay for everything else like the groceries, phone bills, rates etc so will not be relying on him to pay for anything.
If we split, what will happen with the property? Who gets what?
Thanks
Hi,
Thank you for your enquiry. Someone from our office will get back to you shortly.
Hi Sabrina,
Thank you for your enquiry.
The Family Law Act determines how property is split in the event of a defacto relationship breakdown.
Please contact us on 1300 QUINNS to discuss your matter further.
Kind regards
Hi
I’m in a same sex relationship. I have made a very simple relationship agreement (prenuptial agreement) with my partner. We didn’t go to any lawyer and didn’t receive any legal advice.
Although many websites say that you have to get a legal advice before signing a relationship agreement, I couldn’t find any such requirement in the Relationships Act 2008 (I understand that this kind of requirement exists in regard prenuptial agreements in the Family Law Act 1975).
I would appreciate it if you can tell me if I’m required to have a legal advice so the agreement is valid.
Kind regards.
Hi Eli,
Thank you for submitting your enquiry to our blog.
In relation to your enquiry, independent legal advice is a requirement under the Family Law Act to have a binding financial agreement.
Should you wish to discuss your matter further, please contact us on 1300 Quinns to arrange an appointment today.
Hi.
My partner has in the past week decided to separate from me and has retained a set of keys to our jointly owned unit. I appreciate that she retains a financial interest in the property until we work out what to do with it but I have 3 questions:
– what rights does she have to retain the keys given that she has chosen to move out?
– what rights does she have to enter the property?
– what rights do I have to get the keys back?
Many thanks.
Hi Michael,
Thank you for your enquiry.
Due to the sensitive nature of your enquiry, we will be sending you an email shortly.
Michael
I and my partner and 15year old son have been living in a rental house for 2 years, i work full time my partner has never worked since we lived here in perth and inherited a tidy sum from her dad, now she says she has no money left refuses to pay any rent and nothing towards any utility bills and told the agents to contact me to have to pay all the rent, the relationship was coming to an end and it is suspect that she has spent all here money however at the moment I am struggling financially, both our names are on the lease, what are my options.
alyn
Hi,
I have recently split from an eight year defacto relationship.I was buying my home previously, solely in my name.I added a loan to the mortgage for a motorbike for him. there is still 4000 owing and I now owe more on the house than I did before he moved in. He made payments but they were to pay for the bike, so in the eight years I have helped him pay the bike but no money has been paid off the house, Can he claim half of the house
Hi,
i have been in a defacto relationship for nearly 4 yrs and have a 7 month old to my partner.my partner had his own home when i moved in with him, i jave only paid minimal rent occasionly and he pays all the utilities as they are in his name and he does the bulk of the upkeep and cleaning etc of the house. we have each our own cars and only have one loan together for our boat. with our child we look after him equally as our hrs of work are different. what would if any be my entiltlements to his home ??
thanks for any feedback