de facto separation agreement


A de facto relationship breakdown can be deeply traumatizing for both parties. Many couples negotiate a de facto separation agreement in the lead up to separation. While others elect to negotiate a de facto separation agreement post separation occurring. When separation is discussed in Family Law it is defined as the bringing to a conclusion of a de facto relationship.

de facto separation agreementSo what’s the big deal? The date of separation is just that, the date you separated. The answer is, sometimes it is & sometimes it isn’t that clear or simple. For example when one party to the relationship denies there was a de facto relationship or separation occurs close to the 2 year mark in the relationship the date of separation can become key for an applicant tasked with providing proof of de facto relationship by the Courts.

What is important to realise is that separation is a fact, which must be proven if disputed at a later date. It can be a smart thing for separating couples to simply confirm that separation has taken place in writing, via text message or email for example. Make sure these communications are kept in a safe place. Often cases where the applicant must provide evidence of de facto relationship turn upon whether or not a party can prove that separation occurred on a particular date.

This is particularly relevant with de facto relationships, especially when the relationship ends on or near two year threshold issue mark, this will impact whether or not a property settlement is available & what evidence of de facto relationship is available to the Courts.

If you are attempting to provide proof of de facto relationship and your de facto relationship is less than two years in duration the Courts may have no jurisdiction under the Family Law Act to hear the matter or to provide a property settlement. There are other alternatives available other than the two year limit to show that a de facto relationship existed. Other options include; there is a child of the de facto relationships or one party made substantial contributions and it would be unjust of the Court not to hear the matter.

It is also important to keep in mind that there is also a two year limitation period in which in which an applicant can bring proceedings for de facto property settlement. This two year limit commences on the date you separate. As you no doubt, can gather, the date of separation can be very important and highly contentious.

In many instances separation takes place under one roof. Couples move to separate rooms & start to lead separate lives while still sharing a home. Separation can also be very gradual process, not clearly marked by one party moving out for example. When a Court looks at evidence of de facto relationship factors it will examine a number of things before determining when and if a separation occurred. These factors include:

  • Did you in separate rooms or together after the alleged date of separation?;
  • Did you continue to share domestic chores such as cooking and cleaning after the alleged date of separation?;
  • Did you separate your financial affairs to any extent after the date of separation or leave them as is?;
  • Did you lodged or sign any documents informing government agencies of the separation, such as Applications for Centrelink or ATO documents as a single person, as opposed to a person in a relationship?;
  • Did you have sexual relations after the date of alleged separation?;
  • Did you both publicly announce your separation to friends and family?

de facto separation agreementI met my ex and fell hard for her. We were together for 26 months in total & I thought she was the one. Anyway, I was in an accident & received a payout. I was living with my ex at the time & together we decided to put about $200K of my payout into her mortgage which meant she had no mortgage.

We also planned a renovation to her place & started that work. Anyway, at about the 2 year mark her ex came back into the picture & basically caused a lot of problems for us.

A few months later she told me it was over between us & that I had to move out. I way pretty cut up about it to be honest. I tried to win her back but she didn’t want a bar of me. I eventually accepted it was over & sat down with her to work out the money side of things.

She basically told me she didn’t owe me anything & that as we were not together for that long I couldn’t make a claim for the money to be returned. Seriously in that moment all the love I had for her died. I went straight to my Lawyer & had him start an application to recover nearly $270K.

My Lawyer told me she was right in that we hadn’t been together that long & it was right on the 2 year mark. He felt we should make the claim on the basis I made substantial contributions which we did. It was hard. It went on for nearly 2 years and cost my $60K in fees. We won in the end. I got all my money plus interest but I still had to pay my own legal fees of $60K.

We signed a de facto separation agreement at the end of it. If I were giving someone advice I would tell that person to keep all of their evidence of de facto relationship throughout the relationship. Just be careful about what you do with your money. Don’t be blind. Make sure you set up a de facto financial agreement. Then if it all turns bad everything is in writing & you wont have to go to Court about it.

Remember, the information contained on the site does not constitute legal advice. If you think you need legal advice you should contact an Accredited Family Law Specialist.

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