If you're wondering who'll get the home you're currently living in, the car, or boat if you have one, we answer some of the commonly asked questions, so you're across your rights and responsibilities.
If you’ve recently split from your partner or are simply wondering what might happen if you do, you’ll need to keep your financial wits about you. A division of assets and debts, whether they’re held separately or together, may be on the cards.
Here are some of the things to be aware of when it comes to de facto splits and your finances.
How does the law define a de facto relationship?
A de facto relationship, according to Australian family law, is where two people of the same or opposite sex live together on a genuine domestic basis as a couple1. You can’t be married to each other or related by family2.
If we break up, do we have to go to court?
Not all de facto couples have to divide property of the relationship (that’s your assets and debts) when they break up. However, depending on your situation, this may be the case and can be formalised between the two of you without any court involvement3.
If you can’t agree though, you can apply to a court for financial orders regarding the division of property and possibly superannuation, while spouse maintenance might also be payable in some circumstances4.
This must be done within two years of you splitting from your former partner, otherwise you’ll need special court approval to make an application5.
When can orders about the division of property be made?
The family law courts can order a division of any property you and your de facto own (regardless of whether you own it together or separately) if they’re satisfied of one of the following6:
- The de facto relationship lasted at least two years
- The two of you had a child
- One party made substantial financial or non-financial contributions and serious injustice would result if the order to split property wasn’t made
- The relationship is or was registered under a prescribed law of a state or territory.
What does 'property of the relationship' include?
Property includes all assets and debts held in joint or separate names and may include things you acquired before or even after the relationship ends. This could include things like7:
- The family home
- Cars and boats
- Household and personal items, such as furniture, white goods and jewellery
- Business and property investments
- Home loan debt
- Money owing on credit cards or personal loans.
How is superannuation affected?
Under superannuation splitting laws, if you separate, it’s possible you’ll get some of your ex-partner’s super or that they’ll get some of yours.
However, because super is held in a trust and differs from other types of property, there are rules around when these assets can be accessed8.
What this means is, splitting super doesn’t necessarily convert it into cash as it’s still subject to certain rules, which may mean that you mightn’t be able to access the money for a long time9.
Other things to think about
- What your financial situation might look like after the separation
- What financial adjustments you may need to make
- Your will and any other instances (for instance, super or insurance) where you may have named your de facto as a beneficiary.
It may be a good idea to seek legal advice and ASIC’s MoneySmart website has information about free legal services if you’re interested.
Meanwhile, speak to your financial adviser as they could help you understand the long-term outcomes of different settlement options. If you don't have an adviser, find one near you.
1, 2 Family Court of Australia – De facto relationships
3, 4, 5 Family Court of Australia - Property and finances after separation
6 Family Court of Australia - De facto relationships
7 Relationships Australia – negotiating your property settlement page 6
8, 9 Australian Government – superannuation splitting laws
What Happens To Superannuation When You Break Up?15 October 2021 | Manage my money If you and your partner break up, you might get some of their super, or they may get some of yours. Find out more. Read more
What you should know about creating your will and estate plan13 October 2021 | Manage my money If you want to protect your family and assets, it’s worth documenting what you’d like to happen if you can’t make your own decisions later in life or if you pass away. Read more
What happens to my super when I move overseas?13 October 2021 | Manage my money If you’re a permanent Aussie resident, your super will remain subject to the same rules. If you’re a temporary resident, you can apply to have your super paid to you after you leave. Read more
Any advice and information is provided by AWM Services Pty Ltd ABN 15 139 353 496, AFSL No. 366121 (AWM Services) and is general in nature. It hasn’t taken your financial or personal circumstances into account. It’s important to consider your particular circumstances and read the relevant product disclosure statement or terms and conditions available from AMP at amp.com.au or by calling 131 267, before deciding what’s right for you.
You can read our Financial Services Guide online for information about our services, including the fees and other benefits that AMP companies and their representatives may receive in relation to products and services provided to you. You can also ask us for a hardcopy. All information on this website is subject to change without notice. AWM Services is part of the AMP group.