Property division upon separation can be an emotional time. For those in a de facto
relationship, otherwise known as a domestic relationship, property division matters
in Victoria are dealt with under the Relationships Act 2008 (as of 1 December 2008).
For the purposes of the law in Victoria, a de facto relationship is one where both
parties, no matter the gender, have resided with each other in an authentic domestic
arrangement. A court will decide if a de facto relationship exists by examining
an array of characteristics, such as: the period of the relationship; shared residence;
monetary relationships; use and purchase of assets; if there was a sexual relationship;
the children the couple have together; and, the care activities of each parent.
Those parties in a de facto or domestic relationship can register their commitment
under the Relationships Act. In order to be able to register your relationship,
both adults must not be married to other people and personal commitment and domestic
support by one or both must exist.
For those de facto couples who separate but are not in a registered relationship,
they are still able to apply to the Court. However, they must establish that they
were in a de facto relationship and, therefore, eligible to make a claim.
In terms of being able to claim as a party to a de facto or domestic relationship,
a person must fulfil one of the following:
- Cohabited for two years or more in a de facto relationship
- Cohabited for less than two years and have a child together from a de facto relationship
- Substantial Contribution & Serious Injustice. Alternatively, if the two above situations are not applicable, it is possible to be eligible to claim as a party of a de facto/domestic relationship if considerable inputs (i.e. assets or wellbeing) to the relationship occurred. In this scenario, if the relationship is not seen as legitimate under the Relationships Act and a claim was not permitted to be made, a “serious injustice” would occur.
Domestic Relationships: Court Considerations & Property Division
In cases where couples cannot reach a mutually-satisfying outcome in terms of property
division, the matter can be taken to the County, Magistrates’ or Supreme Court.
The time limit for claims in such situations is typically within two years following
the day the couple separated. However, there are exceptions to this and leave of
the Court can be acquired in order to have the case heard.
Adjustments to the method used to divide property can be made where the Court deems
necessary. That is, in order to make the division of property fair, a Court can
adjust the amount of interest each party has in the pool of property. The Court
not only considers the financial contribution of the parties, it also considers
non-financial inputs into the de facto relationship.
When determining property division, a Court will consider a whole range of factors,
some of which include: the age of each party; ability to find and hold down gainful
work; health of each party; and, what type of monetary needs and/or burdens they
have. In fact, it can include any aspect that a Court considers important when making
an Order.
One important note is that of superannuation and property division. Under law, superannuation
is not considered property. This means that it will not feature in any Court Order
in terms of being divided. However, because it is seen as a financial resource,
any superannuation that the couple has will be noted as an interest by the Court
and will be included in determination.
Domestic Relationships: Property Protection & Relationship Agreements
In terms of asset protection, those in a domestic relationship can formalise how
they want assets to be divided in case of relationship breakdown and separation.
This is in the form of a Relationship Agreement.
Relationship Agreements must be made with the guidance and advice of a legal practitioner.
Each lawyer must also certify that they provided advice about the Agreement in terms
of benefits and drawbacks of signing it and the rights of each person.
Other Services:
- Children's Issues
- Child Support
- Domestic/Family Violence
- Financial Agreements
- Property Division
- Separation