Current at May 2023

My spouse and want to divide our property to move on with my life. When am I able to do so?

If you are married, despite common misconceptions, you do not have to wait until you divorce to finalise property settlement matters. Similarly, if you are in a de facto relationship and you separate, there is no minimum time- you do not have to wait to sort things out.

In fact, if you get divorced or separate from a de facto relationship, then you will actually have to commence property proceedings within a certain time limit.

Married couples who obtain a divorce order have a time limit of 12 months after a divorce order has taken effect for filing applications for property and spousal maintenance, per section 44(3) of the Family Law Act 1975 (Cth). Figuring out the exact date of this deadline is never usually an issue, as it aligns with the date provided on the final divorce order document.

In Western Australia, de facto partners are governed by the Family Court Act 1997 (WA). De facto partners who separate, under section 205ZB(1) of the Act, have to apply for a property order within 2 years after the date of final separation.

If you separate from a de facto relationship, it is therefore important to know and agree as to when you separated, in case issues with the 2 year time limit arise. This can be quite difficult when you and your former partner find yourselves in an “on again, off again” relationship, and disagree about the time on which you separated as a de facto couple.

The case of M and G [2006] FCWA 1 is example of such a situation. It concerned a property settlement between a de facto couple, where the parties each had different ideas about when they finally separated.

Ms G and Mr M began a de facto relationship in 1997, and lived together in a house in a country town. Mr M filed an application for property settlement on 24 June 2005. Ms G claimed the relationship ended on 22 July 2003, while Mr M claimed the relationship ended on 17 November 2004.

At the time, the period within which de facto couples had to commence proceedings was one year. This meant that, if Ms G’s date of separation was to be accepted, then Mr M would have to seek leave to make the application out of time, which on the facts was unlikely to be granted.

Ms G believed the date of separation to be 22 July 2003 because, on that day, she said to Mr M, “we are finished and I am out of here” after being assaulted by Mr M’s son at their home. She then went to stay with a friend and told the friend that their relationship was over.

She then moved into a house in a different country town. After this, Mr M attempted to win back Ms G which resulted in his staying over at her house twice or three times a week, but Ms G always maintained that their relationship would never work if they lived together. Mr M claimed the de facto relationship ended when they ceased to have any contact at all, at a later date.

The Court found that the de facto relationship had ended in July 2003. The court cited many aspects of the parties’ interactions following the end of their cohabitation for this decision, however, at the heart of this deliberation was the fact that the parties did not live together, and did not hold any joint aspirations of doing so again – much to Mr M’s dismay.

It was found that the relationship was more one of courtship, rather than being analogous to marriage, and the degree of separation between the parties in terms of their general lives and finances underlined the fact to the Court that at this point, they were no longer a de facto couple. To the Court, Mr M was “…a visitor in her home, albeit one who shared a bed with the owner”. Factual issues aside, this case underlines the importance of knowing what your time limits are when it comes to pursuing property settlement. If you separate from your de facto partner, always make note of the date, and if you stand to gain from a potential property settlement, it is important to seek legal advice as soon as you can.

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Disclaimer

This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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