De facto Relationships and Separation

As our society has evolved over time, so has the nature of our spousal relationships. The concept of a de facto relationship within the family law context has been refined and adapted to suit the needs and expectations of today’s society. Currently, de facto couples are entitled to similar rights as those of married couples, when dealing with family law issues. This includes rights in relation to property and finances, as well as children.

What is a de facto relationship?

A de facto relationship is defined in Section 4AA of the Family Law Act 1975 (Cth). The law requires you and your partner, who may be of the same or opposite sex, to have a relationship as a couple living together on a genuine domestic basis.

De facto couples can seek relief through the Family Courts to have their disputes relating to children determined in the same way that married couples do. De facto couples can also apply to the Courts to have their financial issues determined. Applications for property or financial orders need to be made within two years of the breakdown of your relationship.

If you want to make an application outside this timeframe, you will need to seek the Court’s permission to make the application.

If you are in a relationship with somebody and you are currently discussing the possibility of moving in together, this could be seen as a de facto relationship. It is therefore important to understand the effect or implications of taking that next step and understanding what that means for you.

It is important that de facto couples speak about these issues, and to possibly consider entering into a more formal Binding Financial Agreements (commonly referred to as prenuptial agreements in the US) before they move in together. In Australia, a Binding Financial Agreement can be entered into before, during or after the relationship has ended.

At Rockliffs Lawyers in Sydney, we have years of experience dealing with married and de facto couples. Our expert family lawyers utilise a sensible and practical approach to family law related issues, which means that you have more time to worry about the things that really matter!

Am I eligible to apply for property or financial orders?

Before you make an application to the Federal Circuit Court or Family Court to determine your dispute, you must satisfy all of the following:

• You were in a genuine de facto relationship with your former partner which has broken down;
• You meet one of the following four gateway criteria:
  • That the period for the de facto relationship is at least 2 years
  • That there is a child in the de facto relationship
  • That the relationship is or was registered under a prescribed law of a State or Territory
  • 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
• You have a geographical connection to a participating jurisdiction
• 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.

What will the Court look for to determine if a de facto relationship exists?

There are a range of factors that the Court will consider in determining if, and for how long, a de facto relationship existed. These include:

1. Duration of the relationship;
2. The couples’ living arrangements including the nature and extent of the couples common residence;
3. If a sexual relationship exists or existed;
4. The degree of financial dependence or interdependence between the couple and the way in which couples finances have been arranged;
5. Whether you owned property together and how that property was acquired;
6. The degree of mutual commitment to a shared life;
7. The care and support of children;
8. The reputation and public aspects of the relationship;
9. Whether the relationship was registered under state or territory law;

Importantly, the sex of a party is not a relevant consideration, as the law states that a de facto relationship can exist between two people of the same sex, or of the opposite sex.

You may also still be considered to be in a de facto relationship if:

• You are still legally married to someone else;
• You are also in another de facto relationship;
• You are in a committed relationship with your partner but do not live together on a full-time basis.

If you would like our assistance in determining if you meet the above criteria, get in touch with Rockliffs Lawyers specialist Family Law team now!