Property Settlement (De Facto)
A property settlement is an arrangement about how you and your ex-partner divide up your property.
‘Property’ can be almost anything. It includes the obvious things like a house or a car or money in a bank. But it may also include less obvious things like long service leave entitlements, superannuation, potential compensation claims and debts owed to you or your ex-partner.
How do you sort out a property arrangement?
The best way to sort these issues out is to talk to you ex-partner and reach an agreement. It is wise though to get independent legal advice before you do that, so you know exactly what your entitlements and obligations are.
What happens if you reach an agreement?
If you reach an agreement with you ex-partner it is advisable to get a Certified Domestic Partnership Agreement or Binding Financial Agreement drafted. The benefit of a such an Agreement is that, if your ex-partner doesn’t stick to the agreement, you can go to court to have it enforced.
What happens if you don't reach an agreement?
If you don’t reach an agreement with your ex-partner we can apply to a court for orders to be made to determine your property settlement. The court will also encourage you to agree by organising a conference which you, your ex-partner and your lawyers attend. (If it has been a violent relationship, or there are other reasons why you don’t want to see your ex-partner, the court can organise the conference so that you don’t have to be in the same room.) If that conference doesn’t resolve things the case is referred to the waiting list for a trial. Because that list is long, you may have to wait for up to a year until your trial takes place.
Are there time limits?
It is important to remember time limits apply from the date of separation in order to apply to court for a property settlement. The time limits vary according to which law applies to your relationship.
Changes in law for SA couples
There have been recent changes to the laws which apply to de facto couples in South Australia. If you and your ex-partner separated after 1 July 2010, then the Family Law Act applies to you, and includes provisions for superannuation splitting, spousal maintenance and other entitlements and obligations. If you and your ex-partner separated before 1 July 2010, then the Domestic Partners Property Act 1996 applies to you, unless you and your partner agree to “opt in” to the new legislative provisions.
It is important to get advice as to which law applies to you as the obligations, entitlements and processes vary considerably depending upon the date of separation or whether you “opt in” to the new legislation.