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De Facto Separation

Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Canberra: (02) 6288 1100

Peter Magee

Separating from a de facto partner is one of the most stressful and emotional times for a person, their partner and often their children. The law surrounding what happens when you separate from your de facto partner is complex and mostly governed by the Family Law Act 1975 (Cth) for de facto relationships that ended after 1 March 2009. The questions that may arise from a separation include:

  • Was I in a de facto relationship?
  • Have we separated?
  • What will the future living arrangements be for our children?
  • Will I get to see our children in the future?
  • What happens if there is family violence?
  • Do I move out of the former relationship home?
  • How will I pay for my future living expenses?
  • How will our assets be divided?
  • What happens with our superannuation entitlements?
  • How will the future living costs for our children be met?
  • What do we do if we have complicated business structures that include companies and trusts?
  • What happens if we reach an agreement about how to divide our assets or the future care of our children?
  • Do we need to go to Court?

In addition to the above questions, there are complicated requirements that need to be satisfied before you or your partner can ask for a Court order about how your assets are divided or if spousal maintenance should be paid to you or by you.

If you have any questions about what to do if you and your de facto partner separate then it is best for you to obtain advice legal advice. We have a team of expert family lawyers who will help and guide you through the legal process.

De facto separation is the breakdown of the relationship. In Victoria there is no mechanism by which separation may be registered. Therefore, spouses have to swear under oath when separation took place and if disputed to rely on contemporaneous evidence such as emails, text messages to show when separation occurred. Separation is a factual event that stems from the intention of either or both parties to the de facto relationship and the actions taken pursuant to the intention.

The law recognises separation under the one roof. Therefore, you are not required to move out of the matrimonial home. However, if you are going to continue to live separately under the same roof, it is important that you communicate your intention to separate to your de facto partner and keep appropriate records to support your communication of the separation.

If there is no evidence in writing and the parties continue to live under the same roof, then the following factors will be taken into account to show whether separation has occurred or not:

  • Whether the parties share the same bedroom.
  • Whether a sexual relationship exists.
  • How the finances were organised during the de facto relationship and how they are after the alleged separation.
  • How were the household chores organised during the de facto relationship and how they were after the alleged separation.
  • Whether or not there was continued use of the belongings of the other following the alleged separation.
  • Whether or not the parties present themselves as a couple to family and friends after the alleged separation.
  • Whether or not the parties go for holidays together.

The date of separation in a de facto relationship is important for the purposes of initiating court proceedings for the enforcement of any rights for property adjustment arising from the de facto relationship. The time limit for initiating court proceedings is two years from the date of separation. If you do not institute court proceedings within two years of separating, you may be at risk of losing your right to a property adjustment. If you are time barred, you will have to seek court’s permission to initiate proceedings. The court may not grant the permission.

It is therefore, important to get timely advice about your rights and the time limits that apply in your case. Our family law solicitors at Armstrong Legal guide you as to your options and assist you in resolving your situation.

where to next?

If you have any questions regarding family law, we invite you to telephone Armstrong Legal’s experienced, knowledgeable and approachable Family Lawyers. We look forward to discussing your family law questions with you and can also help you arrange a no obligation initial consultation at our office so that we can meet you in person and discuss your case in greater detail. Our office is conveniently located in Melbourne CBD at Level 13, 575 Bourke Street, Melbourne, VIC.

Why Choose Armstrong Legal?

Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Canberra: (02) 6288 1100

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