A companion relationship is a relationship between two adults living together as a couple on a genuine domestic basis, but who are not married or in a de facto relationship. They can be related by family and be of the same or opposite sex. A relationship where one person provides the other with domestic support and/or personal care for payment is not included in the definition.
Property disputes between companion couples where the relationship has existed for more than three years are covered by the Domestic Partners Property Act 1996.
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 (SA) s 9(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 [Domestic Partners Property Act 1996 (SA) s 9(2)]. 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  SADC 128].
The Act only applies to companion relationships that ended on or after 1 June 2007.
For companion relationships not covered by the Domestic Partners Property Act 1996 (SA), rights to property on the breakdown of a relationship are governed by the ordinary rules of property, trusts and contract.
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 (SA) s 9(3)].
What is property?
The type of property that a court can consider is broadly defined 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.
[Domestic Partners Property Act 1996 (SA) s 3]
Given the potential future size of superannuation entitlements it is very difficult to determine in which court to issue proceedings.
If the total amount is $6 000 or less [Domestic Partners Property Act 1996 (SA) s 13] the application is a minor civil action in the Magistrates Court [note that this section has not been amended to reflect changes in jurisdictional limit of the Magistrates Court minor civil action jurisdiction - although this jurisdiction has a limit of $12 000 as of 1 August 2016, only domestic partnership matters up to $6 000 are treated as minor statutory proceedings].
If proceedings were commenced before 1 July 2013, or if a claim arose before 1 July 2013 (that is, if the relationship ended before that date) then claims up to $80 000 are dealt with by the general civil division of the Magistrates Court.
For claims arising after 1 July 2013, amounts up to $100 000 are dealt with in the Magistrates Court.
Larger claims may be taken in the Supreme or District Courts [Domestic Partners Property Act 1996 s 3(1)].
Principles used by the court in property disputes
The Domestic Partners Property Act 1996 does not give a person an 'automatic' share of their partner's property. There are a number of considerations that a court will consider when determining what entitlements a person has.
A court has powers [Domestic Partners Property Act 1996 (SA) 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 either of the partners.
- 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 SASC 410; (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 (SA) 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. Although the Domestic Partners Property Act 1996 (SA) does not specifically deal with the question of costs, the court may make orders for costs at the conclusion of a case.
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