Property and Relationships

The law categorises property into:

• real estate - which means land or buildings and
• personal property - which covers everything else.

Owning Property Together

Real estate
If you buy real estate with your partner, you can both have your names on the property title. You need to decide whether you will own the property:

• as joint tenants– this means that you both own the whole property. It can only be sold as a whole and if you separate you’ll need to reach agreement about how it is divided up (see below). If one of you dies, the survivor owns both shares of the land automatically, whether or not the person who died had a Will.
  
  OR
  
• as tenants in common – this means that you own separate shares in the property, which could be 50/50 or an unequal percentage. You can each deal separately with your share by selling it to someone else. If one of you dies, their share is passed on according to their Will or the rules of intestacy (see Death and Inheritance section).

If one partner already owns property and the other buys in later
Sometimes one partner moves into a house the other person already owns and they decide they want to own the house jointly. De facto partners of two years or longer no longer have to pay normal stamp duty on the transfer of the title from one name into both names in some circumstances. Further information is available on the Department of Treasury and Finance web site: http://www.dtf.wa.gov.au (follow the link to the Office of State Revenue).

Bank accounts
You can open a joint bank account. This means that the money in it will be jointly owned by you both. If one dies, the other automatically owns all the money in the account. This is helpful if the person dies without a Will.

Personal Property
Personal property is often a more difficult area. This is partly because ownership of personal property is more difficult to prove. One way is to look at whose name is on the purchase document or receipt. Nevertheless, this isn’t conclusive as it may have been a joint purchase.

Separation And Division Of Property – Who gets what

Property agreements
You can make an agreement that details the financial and property arrangements between you. This can be done at the time the property is purchased. Get legal help to write the agreement as whether or not it will stand up in court will depend on the way in which it is written, the processes you go through before signing it, and the circumstances of your relationship. You may have to pay stamp duty on the agreement.

Although making an agreement will cost you money, it may save you money in legal fees in the long run if there is a dispute later. The agreement should be reviewed every few years or so and updated to reflect any changed circumstances.

In any case, keep detailed records of the financial contributions you make, not only to the purchase, but also to maintenance and repairs. If you want a court to enforce the agreement, it’s important to show good faith by doing what you agree to, e.g. if you say you will make certain payments in return for a share of property, then you should make those payments.

Personal Property
If you’re having trouble sorting out who gets what, make a list of your personal property, then talk about what each person gets. You may choose to go through any disputed items, alternating between each of you picking one item at a time. This allows you to focus on personal as well as monetary value.

Disputes
If you can’t agree on what should happen with your shared property (either because you don’t have a property agreement or because one person doesn’t want to stick to the agreement), you will need to negotiate a settlement. You may need legal help or choose to go to mediation.

De facto relationships ending after 1 December 2002
If you are in a de facto relationship (see Relationships section for a definition), and you separated after 1 December 2002, you may be able to apply to the Family Court (WA) to have your property divided.
Ordinarily, you will need to have been in a de facto relationship for at least two years, AND one or both of you must be a resident in Western Australia on the day the application is made AND both of you must normally have resided in Western Australia for at least one third of the duration of your relationship.

In some cases the court can waive the two-year requirement – such as

• where a child of the de facto relationship who is under the age of 18 years, or the partner looking after the child would otherwise suffer serious injustice, or
  
• where the partner applying to the court has made substantial contributions to the property, or the family (that is, the family made up of the de facto partners and any child of theirs) and would suffer serious injustice.

What the court looks at
You should seek legal advice before making an application to the court and before settling your financial issues. There is no standard legal formula for who gets what share, but the Family Court takes into account more than just financial contributions to the property. Some of the other things taken into account include:

1. non financial contributions to the property;
   
2. contributions made to the family unit;
   
3. the income, property and financial resources of each of the parties, and their capacity for employment;
   
4. whether either partner has the care and control of a child of the relationship under the age of 18 years;
   
5. if either party is later living with someone else, the financial circumstances relating to why they are living together;
   
6. the need to protect one party’s role as a parent;
   
7. the duration of the relationship and the extent to which it may have affected the earning capacity of one of the partners;
   
8. the terms of any “financial agreement” (that is, a financial agreement made under the Family Court Act).

Stamp duty - If you have a maintenance agreement or Family Court order that says you need to transfer the ownership of real estate or a registered vehicle then you do not have to pay normal rates of stamp duty.

De facto relationships ending before 1 December 2002
If your relationship ended before 1 December 2002 (or it has ended since then but you had been living together for less than two years and none of the exceptions listed above apply) you can still take court action – but you cannot use the Family Court and you would have to rely on normal rules of property ownership, contract law and common law principles of equity. This can be quite slow and expensive and the outcome can be unpredictable. It is best to get legal advice about your particular situation.

Partner maintenance
Some de facto partners may be entitled to financial support from their partner after separation.
A de facto partner is liable to maintain the other de facto partner, only where the partner seeking maintenance is unable to support himself or herself adequately

(a) because they have the care and control of a child of the de facto relationship who has not attained the age of 18 years;

(b) by reason of age or physical or mental incapacity for appropriate employment;

(c) for any other reason.

If a person satisfies these criteria, their partner will be required to support them to the extent that they are reasonably able to do so.
The factors that the court looks at in determining financial support include those listed at points 3 to 8 above.

Don’t delay - Time limits
The time limit for making an application to the Family Court for property settlement or partner maintenance is 12 months from when the relationship ended. This can be extended by the court on the ground of hardship, but extensions of time are not easy to get.

The time limit for couples separating before 1 December 2002 to make an application to other courts varies depending on the nature of your claim. You should seek advice as early as possible, as in most cases the court is not able to extend the time limit.