In brief

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 years
  • 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 law

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 (NSW).

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.

Swaab Attorneys holds a free public seminar on family law and divorce each Wednesday in the Sydney CBD. Numbers a limited and bookings are essential.Please click here to register for our free divorce seminar.

Swaab Attorneys was the highest ranking law firm and the 13th best place to work in Australia in the 2010 Business Review Weekly Best Places to Work Awards. The firm was a finalist in the 2010 BRW Client Choice Awards for client service and was named the winner in the 2009 Australasian Legal Business Employer of Choice Awards.

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.