Property Disputes

State legislation (the Domestic Partners Property Act 1996) covers de facto property disputes in South Australia. Unlike other States (except Western Australia), which have referred their power over de facto property law to the Commonwealth government, South Australia has decided to retain this area of law. In other States, de facto property disputes are covered by the Family Law Act 1975 (Cth).

If a former partner wishes to apply to the court to resolve a dispute over property, all of the following requirements must be met [Domestic Partners Property Act 1996 s9(1)]:

the applicant or respondent must be resident in South Australia when the application is made
the partners must have been resident in the State for the whole or a substantial part of the period of the relationship
the relationship must have existed for at least three years or there is a child of the relationship [Domestic Partners Property Act 1996 s.9(2)] (ie partners are the natural parents or adoptive parents, or the female partner is the child's mother and the male partner is presumed to be the child's father under Australian law [Domestic Partners Property Act 1996 s 3]). The three years spent living together do not necessarily have to be continuous. If there have been separation periods during the relationship, the distinct periods of cohabitation may, in some cases, be added together to calculate the duration of the relationship [Wren v Chandler [2004] SADC 128].

The Act only applies to relationships that ended on or after 16 December 1996 [s.4]

For relationships not covered by the Domestic Partners Property Act 1996, rights to property on the breakdown of a relationship are governed by the ordinary common law rules of property, trusts and contract.

Time limits Applications must be made within one year after the end of the relationship unless the court, after considering the interests of both parties, is satisfied that an extension is necessary to avoid serious injustice to the applicant [Domestic Partners Property Act 1996 s.9(3)]. However, although applications must be made within one year of the end of the relationship, there is a requirement under the District Court Rules 2006 [R 33(2)] that at least 90 days notice be served on the other party. The result of this is that an application for de facto property settlement must be lodged within 9 months of the end of the relationship.

What is property?

The type of property that a court can consider is broadly defined [The Domestic Partners Property Act 1996 s.3] and includes:

a prospective entitlement or benefit under a superannuation or retirement scheme
property held under a discretionary trust that could, under the terms of the trust, be vested in the person or applied for the person's benefit
property over which the person has a direct or indirect power of disposition and which may be used for the person's benefit
any other valuable benefit.

Which court?

The appropriate court will be determined by the amount being disputed. Given the potential future size of superannuation entitlements it can be very difficult to determine in which court to issue proceedings. The relevant amounts in determining jurisdiction are:

If the total amount is $6000 or less the application is a minor civil action in the Magistrates Court.
Greater amounts up to $80 000 are dealt with in the civil division of the Magistrates Court.
Larger claims may be taken in the Supreme or District Courts [Domestic Partners Property Act 1996 s13].

Disputes over property between couples who are not married are not generally heard in the Family Court of Australia, except in rare and exceptional circumstances. For this to happen there must be other relevant proceedings, that is, residence or child maintenance from which the property proceedings cannot easily be severed for the Family Court to hear it. This power is vested in the Family Court by the Jurisdiction of Courts (Cross Vesting) Act 1987(Cross Vesting) Act 1987 (Cth) and Jurisdiction of Courts (Cross Vesting) Act 1987(Cross Vesting) Act 1987.

Principles used by the court in property disputes

The Domestic Partners Property Act 1996, like the Family Law Act 1975 , does not give a person an 'automatic' share of her or his de factopartner's property. There are a number of considerations that a court will look at when determining what entitlements a person has.

A court has powers [Domestic Partners Property Act 1996 ss 11,14] to consider matters relevant to the just and equitable division of property and, in particular, will consider:

the financial and non financial contributions made directly or indirectly by or on behalf of the partners to the acquisition, conservation, or improvement of property of either or both partners OR the financial resources of both partners
the contributions (including home-making or parenting contributions) made by either of the partners to the other partner or to children of the partners (including children of either partner)
any relevant domestic partnership agreement. If it is a certified agreement that states the Court has no power to set aside or vary the agreement, any order for the division of the property must be consistent with the terms of the agreement
all interests in the property to which the proceedings relate
other relevant matters, which includes the length of the relationship and the immediate financial needs of the parties [Hogg v Roberts (2003) 87 SASR 248]

When deciding the division of property, the court may make orders it considers necessary to divide the property of either or both of the partners between them in a way that is just and equitable [Domestic Partners Property Act 1996 s 10(1)]. For example the court may make orders:

to transfer property from one partner to the other
to sell property and divide the net proceeds between the partners in proportions decided by the court
that one partner pay a lump sum of money to the other [Domestic Partners Property Act 1996 s.10(2)]
to set aside any transactions that have been entered into to avoid the division of property although a purchaser who innocently buys a property in good faith, paying a reasonable value, can keep it [Domestic Partners Property Act 1996 ss.14(1),15].

As far as practicable the court will attempt to finalise all matters to avoid further proceedings between the parties [Domestic Partners Property Act 1996 s.12]. However, the Act does not exclude other forms of remedy or relief [Domestic Partners Property Act 1996 s.16].

Where one of the partners dies, an application for the division of property may be made or continued by or against the legal personal representative of that partner [Domestic Partners Property Act 1996 s.9(4)]. This application may only relate to property that is undistributed at the date of the application.

At the conclusion of a court case the loser is often ordered to pay the winner's legal costs. This does not always apply in the Family Court but is usual in the Magistrates, District and Supreme courts. Although the Domestic Partners Property Act 1996 does not specifically deal with the question of costs, the court may make orders for costs at the conclusion of a case.