“We have been together for 6 months so he/she automatically gets half.”

I cannot count the amount of times that I have heard this fallacy being tossed around. As a family lawyer, few things make me cringe more!

For de facto couples in Western Australia, a Court can only make an order with respect to property adjustment or maintenance if:

• there has been a de facto relationship between the partners for at least 2 years; or
• there is a child of the de facto relationship under 18 and failure to make the order would result in a serious injustice to the partner caring or responsible for the child; or
• the de facto partner who applies for the order made substantial contributions and failure to make the order would result in serious injustice to the partner.

Firstly, it is important to determine whether you were in fact in a de facto relationship. Parties will be taken to be in a de facto relationship if, having regard to all of the circumstances of their relationship, they live together in a “marriage-like” relationship. There is a range of indicators which the Court might consider including but not limited to:

• the length of the relationship between them;
• whether the 2 persons have resided together;
• the nature and extent of common residence;
• whether there is, or has been, a sexual relationship between them;
• the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
• the ownership, use and acquisition of their property (including property they own individually);
• the degree of mutual commitment by them to a shared life;
• whether they care for and support children;
• the reputation, and public aspects, of the relationship between them.

It does not matter whether they are of different sexes or the same sex, or if either of them is legally married to someone else or in another de facto relationship.

If the parties were not in a de facto relationship for 2 years but there is a child of the relationship and failure to make the order would result in a serious injustice to the partner caring or responsible for the child, the Court may still have jurisdiction to hear the application. Further, if substantial contributions were made by either party to the acquisition, conservation and improvement of property and a failure to make an Order would result in serious injustice, then once again the Court will have jurisdiction. It is important to note that contributions are not just financial contributions. They also include non-financial contributions such as physical labour or renovating a house and homemaker and parental contributions. Such contributions must be “substantial”, being something considerable or large. If either of these 3 criteria are not met, the Court will not have power to entertain a property or maintenance application between the parties.

Provided the Court does have jurisdiction, when determining what orders, if any, to then make, there is no presumption of equality. The Court will determine each case on its merits by considering the nature and value of the net asset pool, the actual extent of the contributions made by each party, and their respective future means and needs. The Court will only make orders if it would be just and equitable in all of the circumstances. An equal distribution is certainly not a starting point.

We often hear of people who have negotiated a property settlement with their former partner on the presumption of an equal distribution only to find out that the agreement reached does not reflect the law and is not accepted by the Court. It might well be the case that one party does not have any entitlement to a property settlement or if they do, their entitlement is much less (or more) than 50 %. It is important that litigants are aware of their rights and entitlements and obtaining good legal advice at an early stage can assist to avoid unnecessary costs and anguish.