De Facto Relationships

By 8 March 2019Family Law

We never married. Does the Family Law Act still apply when it comes to our property settlement?

Yes. From 1 March 2009, parties to an eligible de facto relationship which has broken down can apply to the Family Court or the Federal Circuit Court to have financial matters determined in the same way as married couples under the Family Law Act 1975.

A de facto relationship is defined under Section 4AA of the Family Law Act 1975. The law requires that you and your former partner, who may be of the same or opposite sex, had a relationship as a couple living together on a genuine domestic basis for a period of at least two years, unless there is a child of the relationship. In those circumstances, an application can still be made to the Family Court or Federal Circuit Court for property orders even if the duration of the relationship was less than two years.

Is there a de facto relationship?

In determining whether there is a relationship as a couple, the Court takes into account several matters, including:

  1. The length of the relationship;
  2. To what extent and under what arrangements the parties lived together;
  3. Whether a sexual relationship existed;
  4.  The degree of financial dependence or interdependence when the parties lived together;
  5. The acquisition, ownership and use of property;
  6. The degree of commitment by both parties to a shared life;
  7. The care and support of children;
  8. The performance of household duties; and
  9. How other people saw the relationship and reputation.

It is important to note that each case will be determined on its own facts. There is no requirement that any one of the above factors exist. For example, it is possible that two people may be held to have been in a de facto relationship even if they have not lived together. It is equally possible for a Court to hold that two people were not in a de facto relationship even though they did live together.

Is there a time limit?

You must apply for de facto financial orders within two years of the breakdown of your relationship. After this time you need the Court’s permission to apply. Your solicitor can assist you with this process if necessary.

To obtain Consent Orders or a Court Order, you must satisfy the Court of all of the following:

  1. You were in a genuine de facto relationship with your former partner which has broken
    down; and
  2. You meet one of the following four gateway criteria
    1. That the period for the de facto relationship is at least 2 years; or
    2. That there is a child in the de facto relationship; or
    3. That the relationship is or was registered under a prescribed law of a State or Territory; or
    4. When assessing property or custodial claims in cases of a breakdown of a relationship, it is recognised that significant contributions were being made by one party and the failure to issue an order would result in a serious injustice
  3. You have a geographical connection to a participating jurisdiction; and
  4. Your relationship broke down after 1 March 2009 (or after 1 July 2010 if you have a geographical connection to South Australia only); although you may be able to apply to the courts if your relationship broke down prior to the date applicable to your state.

Harris Lieberman’s Family Law solicitors can provide you with advice about whether your circumstances satisfy the above criteria and assist in filing an Application to the Court or preparation of Consent Orders.