Welcome to Sisters In Law, news.com.au’s weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn advise on a “messy” de facto break-up.
QUESTION: I’ve been with my partner for six years and we’re going through a really messy break-up. We didn’t ever get married but have lived together for four years. I moved into her apartment which she bought before I moved in and has a mortgage on. Since moving in, I’ve paid my share of the bills and have also given her ‘rent’ for half of the mortgage. I’ve helped with small jobs such as painting the walls and putting new tiles in the laundry room. Now, she’s given me two weeks’ notice to leave and said she’s going to give me nothing, despite the apartment going up in value by $150,000 since I moved in. Surely I am due something? – Ant, Qld
ANSWER: There are two parts to your question: whether you’re entitled to a property settlement, and whether your ex-partner is entitled to evict you.
Firstly, to determine whether you’re entitled to part of the increase in value of your ex-partner’s apartment (and potentially other assets you purchased together), it must be determined whether you were in a de facto relationship.
A de facto relationship is where a couple who are not married are living together on a genuine domestic basis, having regard to all of the circumstances of the relationship.
It’s not necessary to be living together all of the time, you just need to have merged your lives together. Other factors to consider include whether there is a sexual relationship, the degree of financial dependence/independence between you both, the care and support of children (if any), and the ownership, use and acquisition of property.
Based on the information you’ve told us, you were likely in a genuine de facto relationship.
You haven’t mentioned whether you have a binding financial agreement (known as a ‘prenup’) that was entered into prior to your relationship commencing. Sometimes these agreements are not drafted properly and, as such, aren’t binding. Prenups are also relatively rare, so we’ll work on the basis you don’t have one.
To be entitled to make a claim on your de facto ex-partner’s property following a separation, you must have been living together for more than two years, or, if it’s less than two years, you have a child together, or you’ve made a substantial contribution to the property.
When there is a relationship breakdown, de facto partners have rights similar to those of married couples regarding property division.
Property usually isn’t divided by the court using a precise formula, or a 50/50 split. All property is considered, including cash, real estate, superannuation, property owned before the marriage, cars, gifts, and inheritances.
Financial contributions (such as wages and investments) and non-financial contributions (such as homemaker and primary caregiving responsibilities) are all considered.
To determine a property settlement, a court will:
• Consider whether it is just and equitable to make a property settlement order
• Look at the value of all assets and liabilities of both parties, both individually and jointly
• Assess the contributions each of you made to the property (including physical labour from things like painting the walls, and putting new tiles in the laundry)
• Consider your and your ex-partner’s age and health, whether you’re each earning an income or have the potential to, the length of your relationship, if either of you are living with someone else (plus that person’s financial circumstances), and
• Distribute the property between the parties based on the above.
Even though your ex-partner purchased the apartment before you moved in, the increase in its value during your relationship could be relevant when assessing contributions and entitlements.
If you and your ex-partner can reach an agreement – without any court involvement – on how your property should be divided it will be a much cheaper and often quicker process.
If you are able to reach an agreement then this should be formalised by applying for consent orders in the Family Court.
If you cannot reach an agreement, then you can apply to the Court for orders about the division of property. You can’t make this application until you have tried to resolve it out of court.
You should seek legal advice from Legal Aid, a community legal centre or a law firm to ensure you are receiving what you are entitled to.
There are also independent family dispute resolution practitioners available that can assist you and your ex-partner to come to an agreement.
Finally, if you are considered to be a tenant, you also have rights in relation to evictions. You can contact Tenants Queensland for more information.
This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor. If you have a legal question you would like Alison and Jillian to answer, please email stories@news.com.au. Get more from Alison and Jillian on their Facebook page.
