Until recently the law governing defacto relationships was vague and confusing to say the least but now there is new legislation in the Queensland Property Law Act which will hopefully make things easier when defacto couples separate, with regard to property settlement.
One plus is that defacto couples in Queensland will now have easier access to the Courts to settle their disputes and achieve an amicable property settlement outcome. Previously, a defacto spouse generally had to rely on the law of trusts to establish a claim on property which was not registered in his/her name. The new Legislation is similar to the law governing division of property for married couples.
Who is a defacto spouse? The Act describes a defacto spouse as “one of two persons, whether of the same or the opposite sex, who have lived together as a couple”.
The first thing that you will notice is that the Act covers same sex couples.
Two people are a couple if they have lived together on a genuine domestic basis, in a relationship based on intimacy, trust and personal commitment to each other. Therefore, two people living together merely as flatmates cannot be considered as living in a defacto relationship and cannot come within the Act.
As Brisbane’s experts in Estates, we’re here to help you on your journey.
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A defacto spouse can now apply to the Court for a division of property where:-
(a) The relationship was for a minimum of two years; or
(b) There is a child of the relationship under the age of eighteen; or
(c) Where you can’t bring yourself within (a) or (b) but can show that a serious injustice would result from failure to recognise a defacto spouses financial or non-financial contribution.
So even for relationships of a relatively short duration say six to twelve months, you can still make application to the Court for a division of property where you can show a serious injustice would result.
Such applications must be brought to the Court within two years of the end of the relationship.
A defacto spouse still has the right to seek child maintenance pursuant to the Child Support Act and other disputes concerning children such as residence and contact can still be dealt with by the Family Court.
Unfortunately, couples cannot always agree as to the division of property upon the breakdown of a marriage. Others simply don’t know what they are entitled to and need advice as to their entitlements.
At McLaughlin & Associates we take a caring and sympathetic approach to matrimonial matters. We try our hardest to ensure that property disputes are resolved between the parties without the need to go to Court and on average 90% of disputes are able to be resolved without the need for a Court hearing.
If agreement can be reached with your spouse on how to divide up your assets/liabilities an Application for Consent Orders can be made to the Family Court. If you are unable to reach an agreement, you can apply to the Court for Property Orders.
The law governing the division of assets is complex and therefore, we strongly recommend that you seek our advice before making any decision on such division.