IN BRIEF

Are you aware that those who have had a breakdown in their de facto relationships have the same laws apply to them for the division of property as married couples? If this comes as a shock to you, we have provided in this article the answers to a few of the frequently asked questions when dealing with this issue.

WHAT IS A DE FACTO RELATIONSHIP?

Providing de facto couples with the same rights as married couples has significantly broadened the spectrum of those who can apply to the Family Courts for Orders for the division of property. Situations can occur where parties are in a de facto relationship without being aware of it and therefore, the implications which accompany it. For example, a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

A de facto relationship is a relationship between two people:

  • who may be of the same or opposite sex;
  • who were not legally married to one another or related by family; and
  • having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

The circumstances of each relationship are assessed on a case by case basis. The circumstances that are considered to establish if persons have a relationship as a couple living together on a genuine domestic basis include any or all of the following:

  • The length of time the parties have been in the relationship.
  • The nature and extent to which the parties resided together. While having resided together is a compelling argument for a de facto relationship, it may be possible for a de facto relationship to exist with the parties having maintained separate residences for all or part of the relationship.
  • Whether a sexual relationship exists.
  • The degree of financial dependence or interdependence and whether there are any arrangements for financial support between the parties.
  • Whether the parties own any assets together such as real property or bank accounts.
  • The degree of mutual commitment to a shared life.
  • Whether the relationship is or was registered.
  • Whether you have any children together. Having a child together does not mean of itself that a de facto relationship will be found to have existed.
  • The reputation and public aspects of the relationship, that is, are others aware of your relationship? Do others perceive you as a couple? Do you conduct yourselves as a couple in public?

When determining whether a de facto relationship exists a court may also consider any other matters as they may deem appropriate.

SINCE WHEN HAVE THESE LAWS BEEN IN EFFECT?

Since 1 March 2009, those who have had a breakdown in their de facto relationships can apply to the Family Court or the Federal Circuit Court (the Family Courts) to have financial matters determined in the same way as married couples. The separation must have occurred after 1 March 2009.

WHEN CAN A COURT MAKE AN ORDER IN RELATION TO A DE FACTO RELATIONSHIP?

Before the court can make an Order in relation to a de facto relationship the court must satisfy itself that one of the following circumstances exist:

  • that the period, or total of the periods, of the de facto relationship is at least 2 years; or
  • there is a child of the de facto relationship; or
  • that a party to the de facto relationship who applies for a court order, made substantial contributions during the relationship whether they be financial contributions or domestic contributions and a failure to make an order would result in serious injustice.

WHAT CAN BE DIVIDED?

Parties in eligible de facto relationships can apply to the Family Courts upon the breakdown of their relationship for Orders for a division of any property that the couple own, either separately or jointly. This includes not only real property, motor vehicles, bank accounts, shareholdings in private and public companies and the like but also superannuation. Maintenance can also be ordered.

IS THERE A TIME LIMIT ON MAKING AN APPLICATION?

If you and your former de facto partner are unable to reach agreement as to the division of property and you wish to make an application to the Family Court for financial orders you must do so within two years of the breakdown of your relationship. After this time you need the permission from the Court to start court proceedings.

For further information please contact:

Carla Santo, Associate
Phone: +61 2 9233 5544
Email: cas@swaaab.com.au

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.