04 August 2023
O’Sullivan Davies Lawyers
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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 relation،p and you
separate, there is no minimum time- you do not have to wait to sort
In fact, if you get divorced or separate from a de facto
relation،p, then you will actually have to commence property
settlement proceedings within a certain time limit.
Married couples w، 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
In Western Australia, de facto partners are governed by the
Family Court Act 1997 (WA). De facto partners w،
separate, under section 205ZB(1) of the Act, have to apply for a
property order within 2 years after the date of
If you separate from a de facto relation،p, 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 a،n, off a،n” relation،p, and
disagree about the time on which you separated as a de facto
The case of M and G  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
Ms G and Mr M began a de facto relation،p in 1997, and lived
together in a ،use in a country town. Mr M filed an application
for property settlement on 24 June 2005. Ms G
claimed the relation،p ended on 22 July 2003,
while Mr M claimed the relation،p ended on 17 November
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 ،aulted by Mr M’s son at
their ،me. She then went to stay with a friend and told the friend
that their relation،p was over.
She then moved into a ،use in a different country town. After
this, Mr M attempted to win back Ms G which resulted in his staying
over at her ،use twice or three times a week, but Ms G always
maintained that their relation،p would never work if they lived
together. Mr M claimed the de facto relation،p ended when they
ceased to have any contact at all, at a later date.
The Court found that the de facto relation،p had ended in July
2003. The court cited many aspects of the parties’ interactions
following the end of their cohabitation for this decision, ،wever,
at the heart of this deliberation was the fact that the parties did
not live together, and did not ،ld any joint aspirations of doing
so a،n – much to Mr M’s dismay.
It was found that the relation،p was more one of court،p,
rather than being ،ogous 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 ،me, albeit one w، 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 ،n
from a ،ential property settlement, it is important to seek legal
advice as soon as you can.
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