De facto Relationships
Since 1 March 2009, parties to an eligible de facto relationship which has broken down can apply to the Family Courts (now known as the Federal Circuit and Family Court of Australia) to have financial matters determined in the same way as married couples. Prior to this date, de facto property disputes were determined in the state courts.
What is a de facto relationship?
The Court will find that a person is in a de facto relationship with another person pursuant to the Family Law Act 1975 (“the Act”) if:-
the persons are not legally married to one another;
the persons are not related by family; and
having regard to the circumstances of their relationship they have a relationship as a couple living together on a genuine domestic basis.
The factors the Court will look at to see if two people have a relationship as a couple include:-
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;
the degree of mutual commitment to a shared life;
the care and support of children; and
the reputation and public aspects of their 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.
To be able to bring a Court application for property settlement (and/or spouse maintenance), the following must be satisfied:
there must have been a “de facto relationship”;
the “de facto relationship” has broken down (i.e. the parties have separated); and
one of the 4 “gateway requirements” must be met; and
The application must be made within the applicable time limit, unless the Court gives permission to proceed out of time
What are the gateway requirements?
The Court must be satisfied before making a property settlement order that one of the following gateway requirements set out in the Act are satisfied. They are:-
that the period, or total periods of the de facto relationship is at least 2 years; or
that there is a child of the de facto relationship; or
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
that 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:
that either or both of the parties to the de facto relationship 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
both parties to the de facto relationship were ordinarily resident during at least a third of the 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
that the parties to the de facto relationship 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 the de facto relationship. The exemptions to this rule are if:
hardship would be caused to a party or a child if leave were not granted; or
for maintenance applications – the party’s circumstances were such at the end of that time that he or she would be unable to support him or herself without an income tested pension, benefit or allowance.