Property settlement after breaking up: separation date and de facto time limits

When a marriage breaks up or de facto couple’s relationship ends, the date upon which this separation occurs is a critical date when contemplating any property settlement.

Resolving how the couple’s property, assets and liabilities will be divided is a process governed by the Family Law Act 1975 and in the case of de facto relationships in Western Australia, the Family Court Act. If an agreement can’t be reached and a court has to make a decision, the court’s ability to decide is subject to strict timelines.

But what exactly determines the date of separation, and why is it so important?

Determining the date of separation

The date of separation refers to the date that one or both parties to the marriage or de facto relationship formed the intention to permanently sever their domestic relationship, acted on that intention, and communicated that by words or actions.

This is more than just physically separating and moving into separate residences.

There needs to be a settled intention by at least one party that the relationship is over.

Merely going through a trial separation does not qualify.

The evidence required to prove a separation intention could include:

• Statements or admissions made about the relationship ending to friends or family, which can be corroborated by an affidavit
• Dividing real estate, bank accounts and other financial resources
• Commencing divorce proceedings
• Updating relationship statuses on social media or government documents such as tax returns.

Time limits for property settlement for married couples in Western Australia

For married couples, prior to the parties obtaining a divorce order, there is no time limit for applying for property settlement orders from the Court.
However, once a divorce order from an Australian Court has taken effect, the parties have one year to either apply for property settlement or finalise their property settlement.

Time limits for de facto property settlement in Western Australia

For de facto partners separating in WA, strict time frames apply. Parties must apply within two years of the separation date.

If you fail to comply with these time limits, you must seek permission from the court, which can be difficult to obtain.

In that context, it’s critical that former de facto partners seek legal advice very promptly after separation to avoid missing these deadlines.

Calculating the overall asset pool and determining an appropriate split between partners is highly complex.

It depends on factors like financial and non-financial contributions, needs of the parties, length of the relationship and more. There is not necessarily a one size fits all solution for property settlement which is why seeking professional legal advice is crucial.

At O’Sullivan Davies, our experienced family lawyers can guide you through the property settlement process and ensure your rights are protected.

Contact us today to arrange an initial consultation.