Understanding Your Entitlements After a De Facto Separation
When a de facto relationship ends, partners in Australia have rights and entitlements similar to those in a marriage. Under the Family Law Act 1975, de facto couples are entitled to seek property settlements, spousal maintenance, and child support. This article provides a comprehensive guide to understanding these entitlements and the legal processes involved.
Defining a De Facto Relationship
What Constitutes a De Facto Relationship?
A de facto relationship is defined under Section 4AA of the Family Law Act 1975. Key factors include:
Living together on a genuine domestic basis
Not legally married to each other
Not related by family
Having a mutual commitment to a shared life
These relationships are legally recognised, granting partners similar rights to those in a marriage.
Property Division After Separation
Identifying and Valuing Assets
Upon separation, both partners are entitled to a fair division of property. This includes:
Real estate properties
Bank accounts and savings
Superannuation balances
Shares and investments
Vehicles and personal belongings
The court considers both financial and non-financial contributions made by each partner during the relationship. Non-financial contributions may include homemaking and child-rearing.
Superannuation Splitting
Superannuation is considered property under the Family Law Act 1975. In the event of a de facto separation, superannuation balances can be split between partners. However, the funds remain in superannuation until the recipient reaches the preservation age. It’s essential to obtain legal advice to ensure a fair and equitable distribution.
Spousal Maintenance
Eligibility for Spousal Maintenance
Spousal maintenance is financial support provided by one partner to the other after separation. To be eligible, the requesting partner must demonstrate a need for support and that the other partner has the capacity to pay. Factors considered include:
Age and health
Income and earning capacity
Responsibilities for children
Standard of living during the relationship
Applications for spousal maintenance must be made within 12 months of separation. After this period, the court may grant an extension if there are special circumstances.
Child Support and Parenting Arrangements
Child Support Obligations
Both parents have a legal obligation to financially support their children. The Department of Human Services (DHS) Child Support Agency calculates the amount of child support based on:
The amount of time each parent spends with the child
The number of children
Parents can choose to arrange child support privately or through the DHS Child Support Agency. It’s advisable to seek legal advice to ensure the arrangement is fair and in the best interests of the child.
Parenting Orders
Parenting orders are legally binding decisions made by the court regarding the care and welfare of children. These orders can cover:
With whom the child will live
The time the child will spend with each parent
Communication between the child and each parent
Other aspects of the child’s upbringing
Applications for parenting orders can be made to the Family Court. It’s essential to consider the child’s best interests when seeking such orders.
Legal Processes and Time Limits
Time Limits for Property Settlement Applications
Applications for property settlements must be made within two years of separation. After this period, applications can still be made, but the court will require special permission. It’s advisable to initiate the process promptly to ensure a fair and timely resolution.
Dispute Resolution and Court Proceedings
Before applying to the court, parties are generally required to attempt dispute resolution. This can involve:
Mediation
Conciliation
Arbitration
If these methods do not resolve the dispute, an application can be made to the Family Court. Legal advice is crucial to navigate the complexities of the legal process and to ensure that your rights are protected.
Seeking Legal Advice
Navigating the complexities of de facto separation entitlements can be challenging. It’s advisable to seek legal counsel to understand your rights and options.
