If you have been in a de-facto relationship for three years or more, there is a general presumption of equal sharing under the Property (Relationships) Act 1976 (“PRA”), unless certain circumstances exist.
The PRA recognises that “fleeting” relationships (less than 3 years) should not necessarily be subject to the principles of equal sharing. In these situations, property is generally divided in proportion to the contribution made by each of the parties should the relationship come to an end.
However, if you are in a de facto relationship of more than 3 years, people often mistakenly believe that ‘what’s mine is mine and what’s theirs is theirs’. This is not the case. When you are in a relationship of more than 3 years duration you have often committed to building a shared life together and have bought property, had children, purchased assets or incurred liabilities and therefore the principle of equal sharing applies.
The issue may then become, ‘how long was the relationship’? This is often clearer when you are married or in a civil union (and in both cases, the length of the relationship can include a period when there was a de facto relationship prior to the marriage or civil union). However, a purely de facto relationship can be a little more difficult to determine i.e. when did it moved from the more casual relationship to a de facto relationship.
There are a number of factors the Court will look at, including but not limited to the:
- Duration of the relationship
- Nature and extent of common residence
- Whether a sexual relationship exists
- Degree of financial interdependence or support
- Ownership, use, and acquisition of property
- Degree of mutual commitment to a shared life
- Care and support of children (if any)
- Public perception of the relationship
No single factor is decisive, and Courts will look to the total picture of the relationship before deciding whether it qualifies as de facto or not.
If the total picture of the relationship amounts to a de facto relationship, then the equal sharing provisions of the PRA are likely to apply. However, if it was a de facto relationship of short duration then the Court will not make orders unless satisfied that:
- There is a child of the de facto relationship; or
- That one party has made a substantial contribution to the de facto relationship; and
- The Court is satisfied that the failure to make the order would result in serious injustice.
If you or someone you know is curious about how your relationship might be viewed under the PRA and/or whether you may be subject to the equal sharing provisions if your relationship were to end – the friendly family law team at Schnauer & Co are on hand to provide you with the advice, clarity and confidence you need to understand your relationship property rights.