A: Depending upon which state or territory of Australia you live the answer will vary. In 2009, New South Wales was one of several states to hand over to the Commonwealth Government its powers to deal with property settlements for separating de facto couples. Since that time, property settlements for qualifying de facto couples in New South Wales are governed by similar laws to those which govern property settlements for separated married couples.
Property Questions and Answers
We were never married, does that make a difference?
What am I entitled to?
A: Every property case is different but generally there will be an assessment as to the following:
- What are the assets and debts to be divided?
- What contributions did each party make? This includes consideration of the property brought into the relationship by each party at the beginning of the relationship, during the relationship and post-separation. It also requires a consideration of the non-financial contributions including contributions as homemaker and parent.
- Are there any special circumstances which need to be taken into account such as: the care of children, differences in income earning capacities, health concerns or the ages of the parties?
- Is the outcome fair?
Everyone’s situation is different and assessing what a fair outcome is will also require consideration of issues including:
- What was the length of the relationship?
- Are there any children of the relationship?
- What are each of the parties’ current circumstances?
- How long has it been since the parties separated?
- What have the parties done with their assets since separation?
- Did either party receive a lump-sum such as an inheritance, compensation payout and how it was used?
If I don’t remain in the home will I lose all my property rights to it?
A: No. There are often very good reasons for one party to move out once a separation occurs. Whether you stay or leave makes no difference to how the assets will be divided.
It’s in my name so it’s mine isn’t it?
A: No. All the assets and debts irrespective of whose name/s they are in are considered in a property settlement.
I owned it before the relationship so it’s mine isn’t it?
A: No. All the assets and debts irrespective of when they were acquired are considered in a property settlement.
Is property valued as at the date of separation?
A: Generally, no. Property is valued as at the current date, not the date of separation.
Can superannuation be divided?
A: Yes, through a superannuation splitting Order. These types of Orders require consent from the trustees of the intended super fund to be split before the splitting Order may be made.
Do we have to value the assets?
A: You don’t have to value the assets so long as both parties agree what the value of the assets are. If there is a disagreement a valuation may need to be obtained. Often parties agree (or may be ordered) to jointly-engage a valuer to value property where there is a dispute as to value.
How are the assets valued?
A: Typically, at current market value, not replacement costs or the insured value. Where superannuation is at issue (depending on the type of superannuation) it may need to be valued by an expert valuer.
Is there a time limit for applications for property adjustment?
A: If you were married, applications for property adjustment must be made within 12 months of your divorce becoming final.If you were in a de facto relationship, your applications for property adjustment must be made within 2 years of the breakdown of your de facto relationship.
If you do not apply within these time limits, you will need special permission of a Court. This is not always granted.