On 1 February 2002 there were major changes to the laws dealing with the property of married and de facto couples. Since that date, the property of de facto couples (including same-sex couples) who break up has been divided according to the same equal-sharing rules as govern the property of married couples. Those rules are contained in the PROPERTY (RELATIONSHIPS) ACT 1976. Further, in April 2005 civil unions were established as a legally recognised form of relationship, and civil union couples who break up are now treated the same as married couples under the Property (Relationships) Act.
Just as the old equal-sharing rules were limited in the way they applied to marriages of less than three years (marriages of "short duration"), the current laws usually apply only to civil union and de facto couples who have lived together for at least three years.
Before 1 February 2002, married couples and de facto couples were governed by different sets of laws:
Both the current law and the old law that applied before 1 February 2002 are explained below under the following three headings:
The current laws apply only to married and de facto couples who split up on or after 1 February 2002. If your marriage or relationship ended before that date but you now wish to begin court proceedings for the division of your property, you will be governed by the old laws that applied before 1 February 2002.
The property of married, civil union and de facto couples who have lived together for at least three years is divided (if there is a dispute) according to the same equal-sharing rules. De facto couples include same-sex de facto couples.
Before 1 February 2002, the equal-sharing rules applied only to married couples. The changes to the law that brought de facto couples under the same equal-sharing regime as married couples were made by the PROPERTY (RELATIONSHIPS) AMENDMENT ACT 2001, which amended the old MATRIMONIAL PROPERTY ACT 1976, renaming it the "PROPERTY (RELATIONSHIPS) ACT 1976". Civil unions were established as a legally recognised form of relationship on 26 April 2005, and civil union couples who break up are treated the same as married couples under the Property (Relationships) Act (the changes were made by the PROPERTY (RELATIONSHIPS) AMENDMENT ACT 2005). The Property (Relationships) Act now consists of a single set of laws that, with some exceptions, applies in the same way to married, civil union and de facto couples.
The new laws introduced in 2002 also involved some modifications to the equal-sharing rules. For instance, under the old matrimonial-property laws the presumption of equal sharing was stronger for the family home and chattels than it was for a couple's other property. Under the new laws, no such distinction is made. See below, "'Relationship property' - The presumption of equal shares".
The 2002 law changes also extended the equal-sharing rules so that now they apply not just to when a marriage, civil union or de facto relationship ends, but also to when one of the spouses or partners dies: see below, "Dividing property under the Act when one of the couple dies".
In general, the new laws came into force on 1 February 2002. In extending the equal-sharing rules to de facto couples, they apply to de facto relationships that began on, before or after that date. They do not apply to de facto relationships that ended before that date. (A de facto relationship ends if the two people cease to live together as a couple.)
Civil unions were brought under the equal-sharing rules on 26 April 2005.
A de facto relationship means a relationship between a woman and a man, or a woman and a woman, or a man and a man, who:
In deciding whether two people live together as a couple, the court considers all the relevant circumstances, including any of the following if they are relevant:
No single factor is essential for the two people to be considered as living together as a couple.
A de facto relationship ends if the two people cease to live together as a couple.
The equal-sharing rules apply to your marriage, civil union or de facto relationship only if you have lived together for at least three years.
A marriage, civil union or de facto relationship of less than three years is called a "relationship of short duration", and in general is not covered by the equal-sharing rules. See below, "Marriages, civil unions and de facto relationships of `short duration' (less than three years)".
In that case the length of the de facto relationship is counted in determining whether or not the marriage or civil union is of "short duration".
For example, if a couple have been married for two years but also lived together as a de facto couple for two years immediately before that, the couple is treated as having been married for four years.
The PROPERTY (RELATIONSHIPS) ACT 1976 classifies property under two headings: "relationship property" and "separate property".
Relationship property is divided equally, unless there are extraordinary circumstances that make equal sharing "repugnant to justice", in which case the relationship property is divided according to the contributions that each party made to the relationship.
In the assessing of the different contributions, financial contributions do not rate any more highly than contributions of other kinds, such as caring for children or performing domestic tasks.
"Relationship property" is equivalent to "matrimonial property" under the old laws (pre-1 February 2002). But as well as extending the equal-sharing rules to de facto couples, the laws in force since 2002 also change the way in which relationship / matrimonial property is dealt with:
In general, separate property (that is, all property not classed as relationship property) remains the property of the person who owns it and is not divided. It includes -
Separate property also includes all property acquired out of separate property, and the proceeds of selling any separate property.
But if an increase in the value of one party’s separate property, or any income or gains derived from the property, is caused wholly or partly by the "application" of relationship property, then the increase, or the income or gains, is relationship property, not separate property.
Similarly, if an increase in the value of one party’s separate property, or any income or gains derived from the property, is caused wholly or party by the actions of the other party, the increase, or the income or gains, is treated as relationship property, and is divided according to each party’s contributions to the increase. This applies whether the other party’s actions caused the increase directly or indirectly.
The equal-sharing rules apply to your marriage, civil union or de facto relationship only if you lived together for at least three years. A marriage, civil union or de facto relationship of less than three years is called a "relationship of short duration".
In the case of marriages or civil unions of short duration, special rules apply to decide how the property is divided, which mean that instead of there simply being equal shares, the property is divided according to the contributions the parties made to the marriage or civil union. In the case of de facto relationships of short duration, the Act doesn't apply at all (unless there are special circumstances, such as there being a child), which means that your legal rights will be determined by the ordinary rules of property ownership.
The court can decide to treat a marriage, civil union or de facto relationship of three years or more as if it were a relationship of short duration, if the court thinks this is just in all the circumstances.
Marriages and civil unions of short duration - In the case of a marriage or civil union of less than three years, equal sharing does not apply to -
In these cases, the share of each spouse or partner in the property in question is determined according to their contributions to the marriage or civil union.
In the case of relationship property other than the family home and chattels, each spouse or partner is entitled to share equally in the property unless his or her contribution to the marriage or civil union has been clearly greater than that of the other, in which case the shares are determined according to their contributions to the marriage or civil union.
De facto relationships of short duration – In the case of a de facto relationship of less than three years, the courts have no jurisdiction to divide property under the Act, and therefore you are covered by the rules that applied to de facto partners before 1 February 2002. This means that, in general, you are entitled only to property that you have legal title to: for example, if a house is owned jointly, you are entitled to a half-share. See below, "Dividing De Facto Property – The Old Law, as It Applied before 1 February 2002".
However, there is an exception to this, which applies when the court is satisfied
When this exception applies, the share of each de facto partner in the relationship property is determined according to each partner’s contribution to the relationship.
The court can make various orders in relation to the property or to a specific item of property to give effect to the division, such as ordering property to be sold or, in the case of the home, ordering that one party has the right to occupy the property. The court considers the interests of any dependent children.
In determining the amount and value of the property the court takes into account any outstanding debts.
The court may award a lump-sum payment to one party, or order a transfer of relationship or separate property, if the income and living standards of one party are likely to be significantly higher after the relationship ends than those of the other party, because of the effects of the division of functions within the marriage, civil union or de facto relationship.
This power is aimed at redressing the economic disadvantages faced by a partner who has not pursued a career while the other partner has – for example, if one partner supports the other through tertiary study or looks after the children.
If you’ve entered into a valid property agreement, the relationship property will be divided according to the terms of that agreement and not by the PROPERTY (RELATIONSHIPS) ACT 1976 (this is referred to as "contracting out" of the Act). However, the agreement must be made according to strict requirements (including each party receiving independent legal advice), otherwise the agreement is invalid: see How to enter into your own property agreement.
If you can’t agree between you on how to divide the property, you can apply to the Family Court or High Court to deal with the question under the provisions of the Act.
The new laws that came into effect in 2002 extended the equal-sharing rules so that they now apply not only when a marriage, civil union or de facto relationship breaks up, but also when one of the couple dies.
In that case, the surviving spouse or partner has the choice of either
See How to contest a will and How to deal with a relative dying without a will.
If you have split up from your spouse or partner, you must apply to the Family Court within
The Court can decide to extend the time limit, even if the time limit has already passed.
If your spouse or partner has died, and you choose to apply under the Act for relationship property to be divided, the relevant time limits depend on the size of your spouse's or partner's estate:
Again, the Court can decide to extend these time limits, even if the relevant time limit has already passed.
The changes that were made to the PROPERTY (RELATIONSHIPS) ACT 1976 in 2002 were accompanied by other changes giving de facto partners many of the same rights as people who are legally married:
Before 1 February 2002, the division of property of legally married couples was governed by the MATRIMONIAL PROPERTY ACT 1976 (changed in 2002 to be called the PROPERTY (RELATIONSHIPS) ACT 1976). There was a presumption that the family home and chattels and all other property not kept separate during the marriage would be divided equally between the parties. Before 1 February 2002, the Act did not apply to de facto couples.
The Act classified property under two headings – matrimonial and separate – and provided that matrimonial property would, in general, be divided equally. The Act divided matrimonial property, in turn, into two categories:
in which case the home and chattels were divided according to the parties’ contributions to the marriage partnership.
Therefore the presumption that the property should be split 50-50 was stronger for the family home and chattels than it was for other matrimonial property.
In the assessment of the different contributions made to the marriage, financial contributions did not rate any more highly than contributions of other kinds, such as caring for children or performing domestic tasks.
In general, separate property (that is, all property not classed as matrimonial property) remained the property of the person who owned it and was not divided. It included:
Separate property also included all property acquired out of separate property, and the proceeds of selling any separate property.
But if an increase in the value of one party’s separate property, or any income or gains derived from the property, was caused wholly or partly by the "application" of matrimonial property, then the increase, or the income or gains, was matrimonial property, not separate property.
Similarly, if an increase in the value of one party’s separate property, or any income or gains derived from the property, was caused wholly or party by the actions of the other party, the increase, or the income or gains, was treated as matrimonial property.
In the case of a marriage of less than three years, equal sharing did not apply to
In these cases, each spouse’s share in the property in question was determined according to the contribution that each spouse made to the marriage.
In the case of matrimonial property other than the family home and chattels, each spouse was entitled to share equally in the property unless his or her contribution to the marriage had clearly been greater than that of the other spouse, in which case the shares were determined according to each spouse’s contribution to the marriage.
In giving effect to the division of the property, the court could make various orders in relation to the property generally or to a specific item of property, such as ordering property to be sold or, in the case of the home, ordering that one party has the right to occupy it.
The court considered the interests of any dependent children.
In determining the amount and value of the property the court took into account any outstanding debts.
If you had entered into a valid matrimonial property agreement, matrimonial property was divided according to that agreement rather than the Act. This is called "contracting out" of the Act. However, in making the agreement you were required to follow strict requirements (including each party receiving independent legal advice), otherwise the agreement was invalid: see How to enter into a property agreement.
If you could not agree between you on how to divide the property, you could apply to the Family Court or High Court to deal with the question under the provisions of the Act.
Before February 2002 there had long been a common but false perception that de facto couples were governed by the equal-sharing rules in the MATRIMONIAL PROPERTY ACT 1976. Many people thought that, when a de facto relationship ended, property such as the home, car and furniture was divided equally, just as if the couple had been married.
Before February 2002, this was not the case – the division of de facto property was governed by the ordinary rules of property ownership. This meant that if a property dispute between ex-partners went to court, the court would generally divide the property according to who had legal title to what property. But it was possible in some cases to get a share of property owned by your partner if you could show that the property was subject to a trust of some kind in your favour.
Knowing what factors the court would take into account could help the parties settle the question of dividing the property between themselves, rather than going to court. But because of the lack of legislation in this area there was some uncertainty.
(However, since 1 February 2002, de facto couples are covered by the same equal-sharing rules as married couples. That is, they are covered if their relationships ends after that date. See above, "Dividing the Property of Married, Civil Union and De Facto Couples - The Current Law".)
In the case of property that you and your ex-partner owned jointly, the court would presume that this should be divided equally. Correspondingly, it would presume that property that was owned by one partner only should not be divided.
However, even if you didn’t have legal title to an item of property (for example, if the house or car was in your partner’s name only), you could still establish a right to a share in it if you showed:
In the same way, if property was owned jointly you could still establish a right to a share in it by showing, on the basis of one of the above grounds, that the property should not be divided equally, but that you should get a greater share than your ex-partner.
Under the old law (pre-February 2002), it was advisable in many cases for de facto partners to enter into a property agreement during the relationship, setting out who would get what should the relationship end.
Since February 2002, de facto couples have automatically been covered by the PROPERTY (RELATIONSHIPS) ACT 1976 (which is the renamed MATRIMONIAL PROPERTY ACT 1976). De facto couples who now wish to enter into their own agreements so as not to be covered by the Act should be aware that, from 1 August 2001, it has been necessary for them to follow special procedures (including each party receiving independent legal advice) in order for the agreement to be valid, in addition to the requirements of ordinary contract law. Until 1 August 2001, no special procedures were necessary. For this area of the law, see How to enter into a property agreement.