The same laws apply to parties who were married, or those considered in a de facto relationship, following separation. Since 1 March 2009, de facto couples have had the same rights in terms of applying to the Family Law Courts for orders relating to property settlement.
Generally, a de facto relationship is a relationship between two people of the same or opposite sex, who are not legally married or related by family, and having regard to all the circumstances, have a relationship as a couple living together on a genuine domestic basis.
Cases are assessed on a matter by matter basis.
In order to determine whether two people have lived together on a genuine domestic basis, the following factors are often considered by the Court:
- Whether the relationship registered.
- Length of the relationship.
- Whether a sexual relationship existed.
- Degree of financial dependence, and whether there were arrangements for financial support in place.
- The degree of mutual commitment to a shared life.
- The public perception of the relationship. Were others aware? Did the parties conduct themselves as a couple in public?
- Nature and extent of which the parties resided together. Some de facto couples maintain separate residences for all or part of the relationship.
- Whether there are children.
Did you know – a de facto relationship can exist even if one of the parties is legally married to someone else, or in another de facto relationship.
Before a Court will make orders in relation to property settlement, the Court must be satisfied that the period, or total of the periods, of the de facto relationship, is at least two years. The test will also be met if there is a child of the de facto relationship, or if there has been financial contributions or homemaker and parenting contributions and a failure to make an order would result in a serious injustice.
Just like married couples, de facto couples can apply to the court for a division of all property, including superannuation. On a case by case basis, de facto maintenance (similar to spouse maintenance) is also ordered.
Please remember, if you are unable to reach agreement with your former de facto partner, you must make an application to the Family Law Courts within two years of the breakdown of your relationship. Once this time has passed, permission must be sought from the Courts to commence proceedings.
Want to know more? Get in touch with one of our specialist family lawyers. Let us assist you in making the journey that little bit easier, and help you achieve a fair settlement.
Author: Gabriella Arvanitis, Associate Lawyer, Family Law
Service: Family Law
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