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
who may be of the same or opposite sex;
who were not legally married to one another or related by
having regard to all the circumstances of their relationship,
they have a relationship as a couple living together on a genuine
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
The length of time the parties have been in the
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
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
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
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
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
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