De facto Relationships

Changes to the Family Law Act

There has been a dramatic change in the law relating to De Facto relationships in relation to property matters since 1 March 2009. Since that date, jurisdiction falls within the federal jurisdiction of the Family Law Courts that will apply the law, as amended, under the Family Law Act (Cth).

The new laws provide for de facto couples, when they separate, to obtain property settlements on the principles that currently apply under the Family Law Act to married couples.

This is a change from the laws that applied to de facto relationships in Australia which differed depending on the particular State or Territory law that applied.

The new laws enable courts to order a division of any property that the couple own, either separately or jointly with each other. Superannuation that each partner has is also able to be split (married couples have been able to split superannuation since 2002). Orders for spousal maintenance are now also possible, that is, the court can now look to the future needs of de facto couples whereas before they were not able to do so.

What constitutes a de facto relationship?

What constitutes a de facto relationship involves considering all the circumstances including:

• The duration of the relationship
• The nature and extent of their common residence
• Whether a sexual relationship exists
• The degree of financial dependence or interdependence, and any arrangements for financial support, between them
• The ownership, use and acquisition of their property
• Their degree of mutual commitment to a shared life
• Whether the relationship has been registered, in a State or Territory with laws for the registration of relationships
• The care and support of children, and
• The reputation and public aspects of their relationship.

A de facto relationship is one where two people, not married or related, are living together on a genuine domestic basis. They can be of the opposite or same sex.

Threshold issues

What we would look at as a threshold issue with you is whether any or all of the following can be satisfied as it relates to your particular relationship:

• the period (or the total of the periods) of the de facto relationship is at least two years;
• there is a child of the de facto relationship;
• one of the parties has made a substantial financial or non-financial contribution (including as a homemaker or parent) and serious injustice to that party would result if the order was not made; or
• the de facto relationship has been registered in a State or Territory with laws for the registration of relationships.

The new law applies to relationships which broke down on or after 1 March 2009.

Current State laws apply to relationships which have broken down prior to that date.

An application under the new law must be made within two years after separation. A court may extend that time in limited circumstances, but it is much safer (and likely more cost-effective) to apply within the time limit.