It has arrived. Following numerous false starts, the De facto
Bill amending the Family Law Act to include de facto couples was
finalised yesterday and has been forwarded to the Governor General
for assent. It is expected that all amendments to the Family Law
Act will be in operation by March 2009. The legislation heralds
significant change for de facto couples (including those in same
sex relationships) and gives rise to many questions for those of us
in de facto relationships and even some of us who consider that we
Am I in a de facto relationship?
A de facto relationship is normally defined as two persons
(different sex or same sex) living together on a genuine
What does that really mean?
There are a number of criteria that will be used by the Court to
determine if someone is in a de facto relationship. These criteria
Whether you share a common residence. In the past,
Courts have ruled that it is not necessary for you to share a
residence and a lot of people may be under the misapprehension that
they are not in a de facto relationship as they have separate
The length of the relationship. Usually (but not
always) a de facto relationship must have existed for two years. If
a child has been born to the relationship or other relevant factors
exist you may be able to make a claim even if your relationship did
not last two years.
Are you in or did you have a sexual relationship as part of
the relationship? It is possible for a de facto relationship
to exist even though you may not have an ongoing sexual
relationship with the other person.
Whether you own property or have shared finances with the
other person. This also includes where the other person may be
financially dependant on you or where you contribute significantly
to their lifestyle.
Whether other people around you know about the relationship
and if you have been considered by other people as a
Under the new amendments to the Family Law Act, you could be in
a situation where you are still married and be in a de facto
relationship at the same time.
If you consider that you could be at risk, it is important to
My de facto partner and I have already separated. Will we be
able to access the Family Court?
The new de facto legislation will automatically apply to those
in relationships that break down after the commencement of the
amendments to the Family Law Act. Whilst the bill has been passed
it has not yet commenced. All things being equal it is likely that
the Bill will receive assent by the end of 2008 but some operative
provisions of the Bill may not commence until March 2009. If you
separate after March 2009, the new rules are likely to apply to
If you are already separated and have not commenced property
settlement proceedings in a State court, you and your former
partner can agree to "opt in" and make use of the new
Dependant upon your individual circumstances a decision to use
the new legislation may benefit or disadvantage you significantly
in terms of your ultimate entitlement or the cost of your
proceedings. If you have separated or are considering separation it
is important that you obtain legal advice as soon as possible.
I have already entered into a cohabitation agreement with my de
facto partner. Now that the law has changed, am I protected?
If you entered into a cohabitation agreement prior to the
changes to the Family Law Act, your agreement should still be
valid. Cohabitation agreements are complex and for them to be
binding, they require strict compliance with the relevant
legislation. We suggest that you seek advice and have your
agreement reviewed by a family law specialist if you have any
concerns. For further information contact any member of our family
law team or the contacts below.
There are several requirements that must be completed by an executor before the distribution of assets to beneficiaries.
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