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My question is as follows. My defacto partner and I have…

Customer Question
My question is as...

My question is as follows. My defacto partner and I have separated after 20yrs. I have 50k given to me as early inheritance by my father which we had sitting on the mortgage. The house is now sold. She has 25k left to her when her father passed 3yrs ago sitting in an account in NZ. Who's entitled to what?

Lawyer's Assistant: Because real estate law varies from place to place, can you tell me what state this is in?

QLD

Lawyer's Assistant: Has anything been filed or reported?

NO

Submitted: 8 months ago.Category: Australia Law
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Answered in 2 hours by:
9/25/2017
Solicitor: John Melis, Lawyer replied 8 months ago
John Melis
John Melis, Lawyer
Category: Australia Law
Satisfied Customers: 2,798
Experience: Principal Lawyer at Legal AU Pty Ltd
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Dear customer, my name is***** solicitor, thank you for using Just Answer, I will assist with your question today. Please allow me a few moments to review your post and I will respond accordingly.

Kind regards
John Melis

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Solicitor: John Melis, Lawyer replied 8 months ago

Dear customer, property settlement for de facto couples is legislated by the Family Law Act Pt VIIIAB which is identical to married couples in Pt VIII of the Act. De facto couples have a right to maintenance which includes sections 90SD to 90SJ of the act, and property division, which is sections 90SK to 90SN, and the splitting of the superannuation under section 90SM of the Act.

There are jurisdictional hurdles that must be satisfied to raise a property separation claim for de facto couples. There are also requirements that the relationship was for a period of two years. When these two factors are met, property or spousal maintenance orders may only be applied for after the couple have separated.

De facto couples may complete a property division between themselves or raise an application to the Federal Circuit Court. To raise a property separation claim, one of the parties must be an Australian citizen, or ordinary resident of Australia and in Australia when the application is filed. In addition, the de facto relationship must have been bona fide. This can be demonstrated through the duration of the relationship, nature and extent of common residence, whether or not a sexual relationship existed, the degree of financial interdependence, ownership of property, children and their care, performance of household duties, mutual commitment and support for each other, and public aspects of the relationship. A de facto relationship is defined under section 4(1) of the Family Law Act with the meaning set out in section 4AA.

The division of property interests are regulated by section 90SM, which is similar to section 79 for married couples under the Family Law Act, with section 90SM(4)(a) of the Act requiring that financial contributions are taken into account. Creditors are also entitled to become part of the property proceedings for separation for de facto couples under section 90SM(10).

Where one de facto partner raises a maintenance support need against the other partner, the applicant needs to satisfy section 90SD the geographical requirement, and matters set out in section 90SB, as well as matters under section 90SF of the Act.

The time limitation to raise a property division or maintenance claim is within two years of the relationship breakdown. However, this can be changed with leave of the court in section 44(6) of the Act in specific circumstances where it can be demonstrated that the applicant could not support themselves.

Where de facto couples are separating they can settle their division of the assets amicably through a financial agreement, or through the Federal Circuit Court.

In your particular case the length of the relationship would entitled you to 50% of the asset pool to start with and the scales off justice for financial separation will be based on the facts mentioned above.

If you would like to discuss this matter further by telephone, I welcome you to request those services.

If you have any further questions, I would be pleased to answer those for you.

Please don’t forget to leave positive feed back.

Kind regards
John Melis

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The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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