Whether de facto couples have the same rights as married couples
after they break up depends on whether they separated before or
after 1 March 2009.
What constitutes a de facto relationship
To be considered a de facto relationship a couple must fall
within one of a number of categories. These are:
They have lived together as de facto partners for at least two
They have a child together
One of the parties has made a considerable contribution to the
property and if an order for property settlement were not made, a
serious injustice would flow to that party
The relationship is registered under a state or territory
De facto couples who separated after 1 March 2009
From 1 March 2009, couples who separate after living in a de
facto relationship in all states and territories of Australia,
except WA and SA, are covered by the Family Law Act (Cth)
for the purpose of obtaining a property settlement.
The law relating to a property division for a de facto couple
separating after 1 March 2009 mirrors that which governs the
breakdown of a formal marriage. Financial and non-financial
contributions are taken into account, as well as the needs of the
parties into the future and whether the resultant property
settlement is just and equitable.
De facto couples who separated before 1 March 2009
Unless both parties "opt in" to the Family Law Act in
writing after receiving independent legal advice, the parties to a
de facto relationship which ended prior to 1 March 2009 are not
able to come under the Family Law Act. In NSW, property division
between de facto partners who separated prior to 1 March 2009 is
subject to the provisions of the Property (Relationships) Act
The parties to de facto relationships which have broken down
prior to 1 March 2009 do not have the same rights as married
couples. The division of property is influenced very much by
financial contributions. While some consideration is given to
non-financial and parenting contributions, it is not to the same
extent as in formal marriages.
There are also very limited circumstances where maintenance can
be obtained. Usually, however, future needs are not considered. In
the past this has resulted in decisions which may be considered
unjust to one of the parties, particularly when the de facto
relationship has been a long one.
Limitation period after separation
To seek an order from a court for a property settlement, a party
to a de facto relationship must make an application within two
years of separation. In a marriage there is no limitation period
after separation. However, if you obtain a divorce, there is a
twelve month period in which a party can make an application to the
court for a property settlement or spousal maintenance. In both
cases, an application to the Family Court or Federal Magistrates
Court can be made for leave to commence out of time.
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The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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