09 Jun Property settlements for defacto couples
In South Australia if you have been in a de facto relationship and have separated after 1 July 2010 property settlement is dealt with in the same way as married couples who have separated, that is, under the Family Law Act 1975. This process generally revolves around a global approach to the asset pool that you have accumulated whilst you have been in a relationship. This means that no specific item is selected as belonging specifically to one person and that all assets are pooled and you work out a percentage division. You should work out the total assets including cars, property, shares and so on. Then calculate your total liabilities such as credit card debts, mortgages etc and deduct this from the total asset figure. This will give you the net asset figure. There are other considerations as well, such as financial and non-financial contributions to the relationship, health issues, future earning capacity, standard of living and also the length of the relationship.
Superannuation savings should also be considered because as of 2009 de facto couples can have super splits in relation to property settlement. What this means is that both parties walk away with similar or equal amounts of super after the relationship. So if one party has $100,000 in super and the other has $50,000, the party with the larger super amount should split their super so that $25,000 is transferred to the other party so that both parties have $75,000 each.
You have two years after separation to commence proceedings for property settlement but if there are any mitigating circumstances you may seek leave of the Court to apply outside of that time. Mitigating circumstances may include that you had serious health issues or the other party had compounded the issues by not engaging with you in trying to settle out of court.
You may not be aware that there are some community agencies who also offer mediation in relation to property settlement. One of these is Centacare and they offer mediation at a low rate, determined by your income level. The staff do not have a legal background such as a law degree but have extensive training in mediation and can assist you to refine the issues in dispute so that you can then engage a solicitor to draw up consent minutes to file with the court. This means that you do not actually have to go to court and is a cheaper option if the parties are amicable. Additionally if your assets are quite low you should consider settling out of court as an option, otherwise you might not have anything left to negotiate about once legal fees are deducted from the asset pool.
Other options include a Binding Financial Agreement or settling the matter privately. One major issue with settling on a private basis is that either party can come back later and say that they felt coerced into dealing with the matter and did not obtain a just and equitable settlement. Binding Financial Agreements are not always watertight either and can be challenged in a court. So give some consideration as to finalizing property matters once and for all through filing a consent application – remember this doesn’t mean going to court but will settle matters once and for all with a sealed order of the court. This will provide you with certainty and security about financial matters.