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De facto Relationships

Any relationship breakdown can be emotionally taxing and overwhelming, however de facto relationships come with their own set of legal complexities. In this tough period, Honan Family Law can help lessen the burden of going through a stressful de facto relationship separation.

We can support you with expert and compassionate guidance to help you navigate through de facto separation processes, including pre and post-separation advice, and help you understand your options if you plan to embark on a new de facto relationship in the future. 

Do de facto relationships have the same entitlements as married couples? 

Changes to the Family Law Act on 1 March 2009 enable de facto couples to now have the same entitlements as married couples when it comes to financial matters such as property settlement, spousal care and superannuation splitting.

Am I in a de facto relationship?

According to the Family Law Act 1975 (“the Act”), you are in a de facto relationship if you and your partner:

  • are not legally married to one another;
  • are not related by family; and
  • have a relationship as a couple living together on a genuine domestic basis.

The factors the Court will look at to see if you and your partner have a relationship as a couple include:

  1. the duration of your relationship;
  2. the nature and extent of your common residence;
  3. whether a sexual relationship exists;
  4. the degree of financial dependence or interdependence and any arrangements for financial support between you and your partner;
  5. the ownership, use and acquisition of your property;
  6. the degree of mutual commitment to a shared life;
  7. the care and support of children; and
  8. the reputation and public aspects of your relationship.

A de facto relationship can exist even if one of the parties is legally married to someone else or is in another de facto relationship.

Everything you need to know about de facto relationships

If your relationship has broken down, it is important you are aware of what you may be entitled to. If you and your ex-partner own property together, or have a child together, you may be entitled to pursue a property settlement or spousal maintenance.

As with marriages, there are time limits for financial separation in a de facto relationship. Any Court application must be made within 2 years of the date of separation. Seeking legal advice prior to or early on in your de facto separation will help you to understand what your options are quickly, and avoid losing assets you are entitled to.

The Honan Family Law team are experienced de facto lawyers and can lead you in the right direction with specialised advice tailored to your unique circumstances.

To be able to bring a Court application for property settlement and/or spouse maintenance, you will have to  satisfy the following:

  1. there must have been a “de facto relationship”;
  2. the “de facto relationship” has broken down (i.e. the parties have separated); and
  3. one of the 4 “gateway requirements” must be met.

Accordion Content

The Court must be satisfied before making a property settlement order that one of the following gateway requirements set out in the Act is fulfilled:

  1. the period, or total periods of the de facto relationship is at least 2 years; or
  2. there is a child of the de facto relationship; or
  3. that:
    • the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in certain sections of the Act; and
    • a failure to make an order or declaration would result in serious injustice to the applicant; or
    • the relationship is or was registered under a prescribed law of a State or Territory.

Pursuant to section 90SK of the Act, a further gateway issue that must be established before the Courts have jurisdiction to determine the division of property following the breakdown of a de facto relationship is the geographic requirement. The Court must be satisfied:

  1. that either yourself or both you and your partner were ordinarily resident in a participating jurisdiction when the application for the order was made (i.e., in a State or Territory of Australia); and
  2. that either: 
    • both you and your partner were ordinarily resident during at least a third of your de facto relationship; or 
    • the applicant for the order made substantial contributions, in relation to the de facto relationship; in one or more States or Territories that are participating jurisdictions at the application time; or 
    • you and your partner were ordinarily resident in a participating jurisdiction when the relationship broke down.

An application (for property settlement and/or spouse maintenance) can only be brought within 2 years of the end of your de facto relationship.  The exemptions to this rule are if:

  1. hardship would be caused to you or a child if leave were not granted; or
  2. for maintenance applications – your circumstances were such at the end of that time that you would be unable to support yourself without an income tested pension, benefit or allowance.

No. It is encouraged that you and your ex-partner try to come to an amicable agreement outside of the Court. An experienced family lawyer can conduct negotiations on your behalf to help achieve a fair settlement of assets. These negotiations can be formalised via a legally binding Financial Agreement or a Consent Order.

Need support navigating your next move?

Book an initial consultation with us. We’ll help you understand where you stand, so you can move forward with grace and confidence.

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