De Facto Couples

The Norton Law Group are family lawyers located in Sydney, specialising in legal matters surrounding de facto relationships.

De facto relationships are dealt with under the Family Law Act as a result of changes to the law in 2009. The changes to the law also mean that same sex relationships are dealt with within the act in precisely the same way as all other relationships.

So how does the court determine whether you are in a de facto relationship?

Two people are considered in a de facto relationship if they are not legally married to each other,  not related by family and have a relationship as a couple living together on a genuine domestic basis.

The Court will sometimes require information as to: 

• the duration of the relationship; 
• the nature and extent of common residence; 
• whether a sexual relationship exists; 
• the degree of financial dependence or interdependence and arrangements for financial support; 
• the ownership, use and acquisition of their property; 
• the decree of mutual commitment to a shared life; 
• whether the relationship is or was registered under a prescribed law of a State/Territory; 
• the care and support of children; and 
• the reputation and public aspects of the relationship. 

You will also need to demonstrate that you have lived together for at least two years. However, this is overlooked if there is a child of the relationship, or in other exceptional circumstances.

As from 1st March 2009, in most states (except South Australia and Western Australia) the Family Law Court can now deal with both parenting and financial matters arising from a relationship breakdown, whether the relationship was a marriage or de facto, and whether the relationship was same sex or heterosexual, provided the parties separated before March 1st , 2009. For prior separations, unless both parties agree, the State courts will still deal with the financial matters.

De facto claims must normally be made within two years of the end of the relationship, although a court can extend this if seen appropriate. To qualify to make a claim, the law requires either: 

• A total two year relationship, although that time does not have to be continuous, 
• A child of the relationship, 
• Where the claimant has made substantial contributions, and serious injustice would result if a claim was not allowed, or 
• The relationship was registered where a local law provides for registration. 

Prevention better than cure 

Just as in a marriage, de facto couples can enter into binding financial agreements, before, during or after a relationship. There are formalities to be complied with, and there are some circumstances where an agreement can be set aside by a court, so expert advice is recommended.