De Facto Relationships

Under the Family Law Act 1975 , a party to a de facto relationship may be able to apply to the Court for a property settlement if that relationship breaks down.  The right of a party to a de facto relationship to apply for a property settlement arises where:

• The parties have lived in a de facto
  relationship for at least two years; or
• The parties to the de facto relationship have a
  child together; or
• Either one of the parties to the de facto
  relationship has made a substantial financial contribution to the relationship.

If the parties to a relationship were not previously married, the Court must be satisfied that the relationship was in fact a de facto relationship before it will consider making an order for a property settlement. In deciding whether a relationship is a de facto relationship, it does not matter how the parties to that relationship describe their relationship. Instead, the Court’s decision as to whether a relationship is a de facto relationship is based on the requirements set out in the Family Law Act 1975.  That Act states that a person will be considered to have been in a de facto relationship if:

• the parties to the relationship were not legally married to each other; and
• the parties to the relationship were not related by family; and
• having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

To assist in determining whether parties ‘have a relationship as a couple’, the Family Law Act 1975 stipulates that the following matters are relevant considerations:

• the duration of the parties’ relationship;
• the nature and extent of the parties’ common residence;
• whether a sexual relationship existed between the parties;
• the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;
• the ownership, use and acquisition of the parties’ property;
• the degree of mutual commitment to a shared life by the parties;
• whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
• the care and support of children by the parties;
• the reputation and public aspects of the parties’ relationship.

Not every relationship is the same, and it is not necessary for each of the above considerations to apply to a relationship before a finding can be made that a de facto relationship existed.  Instead, whether a Court will find that a relationship is a de facto relationship will depend on the individual circumstances of each case.

There is no requirement for parties to a de facto relationship to wait a minimum period of time before applying to the Court for a property settlement and/or spousal maintenance, and an application can be made to the Court as soon as the relationship has ended.

However, you must apply to the Court for a property settlement or spousal maintenance within two years of the date of your separation. There are exceptions to this general rule. So, if you are considering applying for a property settlement following the breakdown of your de facto relationship, but you separated more than two years ago, you should contact us as soon as possible to see whether you may still be able to bring that application.