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What if parties have not yet separated? Can a party still apply for a property settlement?

What if parties have not yet separated? Can a party still apply for a property settlement?

This might apply where one party has lost capacity to make decisions (eg. Dementia) or one party has died after the commencement of Court proceedings but before separation has taken place.

The High Court in Stanford and Stanford (2012) FLC 93-518 confirmed that the Court does have the power under the Family Law Act 1975 (Cth) to make orders for a property settlement where married parties have not yet separated.

What about de facto relationships?  In Western Australia, the Court’s power to make orders for a property settlement for de facto relationships falls under the Family Court Act 1997 (WA).

Usually, where a de facto relationship has ended a party must apply to Court for a property settlement within 2 years of separation under section 205ZB of the Family Court Act 1997 (WA).

In Fabrizi and Grasso (Deceased) by his legal personal representative Grasso (Jnr) [2019] FCWA 176, Justice Duncanson considered a situation where a de facto relationship had not ended before a party commenced proceedings for a property settlement under s205ZG of the Family Court Act 1997 (WA).

It was ultimately found by Her Honour that there is no requirement in the Family Court Act 1997 (WA) for a de facto relationship to have ended before a party can commence proceedings for property settlement.  Justice Duncanson held at paragraphs 79 to 82:

[79] “In my view, in the interpretation of s 205ZB of the State Act, a construction which places de facto couples in Western Australia in the same position as married couples in Western Australia is to be preferred over a construction that does not.

[80] I agree with the applicant’s submission that s 205ZB merely provides a temporal limitation on when an application may be made by a de facto partner if the relationship has ended, and it is not relevant to an application by a de facto partner whose relationship has not ended.

[81] There is no reference to a de facto relationship having ended or broken down in s 205Z of the State Act which sets out the circumstances where the Court may make an order.

[82] I conclude there is no requirement in the State Act for a de facto relationship to have ended before a party can commence proceedings.”

Lisa Guagliardo I Lawyer

lisa.guagliardo@kimwilson.com.au

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