DE FACTO SETTLEMENTS
The dissolution of a de-facto relationship can pose a whirlwind of emotions and uncertainties, especially when it pertains to the division of shared assets.
Understanding a De-facto Relationship
In the purview of the Family Law Act under s4AA, a de-facto relationship is classified as a relationship between two individuals who are neither married nor related by family but share a genuine domestic bond as a couple. The determination of whether a relationship falls under this category takes into account an array of factors, including the duration and nature of the relationship, financial interdependence, mutual commitment, property ownership, care and support of children, as well as public perception and reputation of the relationship.
When couples in such relationships separate, disputes concerning the division of their assets often surface. However, there exist multiple pathways to mitigate these conflicts, which include pre-action procedures, mediation, arbitration, commencing proceedings, or through legal documents such as financial agreements or consent orders.
The end of a de-facto relationship often brings with it a host of legal intricacies. It’s essential to understand the legal pathways available to ensure a fair division of assets and property. Rest assured that at Ramsden Family Law, we are dedicated to helping you navigate these challenging circumstances with the utmost care and professionalism.
Senior Associate, Daniel Rod Explains, Splitting Assets After A De Facto Breakup
Approaches to Property Dispute Resolution
1. Pre-action Procedures
These are preliminary steps undertaken with the intent of resolving conflicts before resorting to court proceedings. This includes information exchange, and attempts to reach an amicable agreement through informal negotiations or mediation.
2. Mediation
In mediation, an impartial mediator assists the parties to arrive at a mutually agreeable solution, thereby facilitating resolution of disputes about asset and property division.
3. Arbitration
Arbitration allows an impartial arbitrator to make a binding decision on the dispute. This method can be employed for disputes regarding asset and property division.
4. Commencing Proceedings
This option involves starting legal proceedings in court where a judge determines the division of assets and property. The proceedings typically begin in Division 2 of the Federal Circuit and Family Court of Australia, but can also commence in the Local Court if the disputed property value is under $20,000.
5. Consent Orders and Binding Financial Agreements
Both are legal tools used for settling property disputes in de-facto relationships. They differ significantly in terms of legal status, approval process, enforceability, and requirements
- Legal Status: Consent Orders are court orders bearing the force of law, while Binding Financial Agreements are legally enforceable contracts between parties, not court orders.
- Approval Process: Consent Orders require court approval, unlike Binding Financial Agreements.
Enforceability: Consent Orders can be enforced by the court Application, whereas enforcement of Binding Financial Agreements is through contractual remedies.
Requirements: For Consent Orders to be valid, they must adhere to the Family Law Act 1975, and for Binding Financial Agreements, they must comply with the Act’s requirements and be executed according to its formalities.
One critical detail to remember is the two-year limitation for commencing property settlement proceedings. This period begins from the date of separation, highlighting the importance of resolving the matter within this timeframe.
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