De Facto Relationships When a de facto relationship breaks down,
property settlement and child custody and maintenance issues are governed by the Family
Law Act 1975 in all Australian states and territories except for Western Australia.
For de facto relationships in Western Australia, the relevant legislation is the Family Court
Act 1997. Section 4AA of the Australian Family Law Act
1975 and section 13A of the Interpretation Act 1984 in Western Australia describe a
defacto relationship as one in which a couple lives together on a genuine domestic basis.
This applies to different sex or same sex relationships. If you have been legally married
to each other, or are related by family, then it is not a de facto relationship. If one
party is legally married, they can still be considered to be in a de facto relationship
with someone else. As a general rule most relationships aren’t
considered to be de facto unless the couple has lived together for two years without separation.
However, there are exceptions, such as if there are children, or there has been a substantial
contribution to property. Factors that determine the existence of a
de facto relationship A de facto relationship may arise between
people of the same or of the opposite sex. Factors which are considered when determining
whether or not a couple is, or has been, in a de facto relationship include:
• the duration of the relationship • whether there was a sexual relationship
• the financial dependence of a party • the degree of mutual commitment to a shared
life • the ownership and use of property
• the care and support of children, and • the reputation and public aspects of the
relationship. There is no clear formula to establish a
defacto relationship but each case is examined individually and the specific circumstances
of the relationship taken into consideration. You can also be considered to be in more than
one de facto relationship. Registering a de facto relationship
Most states allow you to register a de facto relationship through the Registry of Births,
Deaths and Marriages. This provides you with a certificate which can be used as proof of
the relationship and how long you have been together. This also may create rights for
property division even though you may not have lived together for two years.
Property settlement at the breakdown of a de facto relationship
Upon the breakdown of a de facto relationship, there are three ways to sort out how to divide
property: • by agreement without court involvement
• by agreement formalised by the Court through an application for Consent Orders, or
• by application to the Court for orders. The Courts can make an order for the division
of any property that you own together or separately. They may also order a split of any superannuation,
or that one party pay spousal maintenance. The net asset pool will include anything acquired
before, during, or after separation. It does not matter whether the property was owned
jointly or individually. When determining a property settlement, the Court evaluates
the types of contributions – financial and non-financial – made by either person, as
well as their future needs. Before you can make an application to the
Courts you need to ensure that: • your de facto relationship lasted for
at least two years • there is a child or children of the relationship
• you made substantial financial or non-financial contributions to the other person’s property
• serious injustice would be caused to a homemaker or parent if property was not divided,
or • the de facto relationship was registered
in a state or territory. The Court will not make an order unless they
consider it just and equitable to do so. Applying to the court
In Western Australia, if you have been in a de facto relationship, you need to apply
to the Family Court of Western Australia to resolve issues relating to children or property.
In all other Australian states and territories, you can apply to either the Family Court or
the Federal Circuit Court where your family law matters will be determined in the same
manner as for a married couple getting divorced. Ordinarily, application should be made to
the Federal Circuit Court unless the matter involves issues such as:
• international child abduction or international relocation
• specialised medical procedures for a child or children
• contravention of parenting orders • serious allegations of the sexual or physical
abuse of a child or children, or serious controlling family violence, or
• complex questions of law. In all states and territories, you must apply
for financial orders within two years of separation from your de facto partner. Otherwise you
will need to seek leave from the Court to apply.
Death of a de facto partner If you are in a de facto relationship and
your partner dies, then you have the same rights as a married person. This may entitle
you to: • a share of an estate where no will exists
(where your partner has died ‘intestate’) • challenge the will if not adequately provided
for • receive compensation under workers compensation
law if your partner dies during the course of employment, and
• claim social security.
What to do next If your de facto relationship is breaking
down, or if you have already separated, it is important to obtain legal advice quickly.
Go To Court Lawyers operate a Legal Hotline on 1300 636 846 where you can talk directly
to a lawyer from 7am to midnight, 7 days a week. Your call will be treated with the strictest
confidentiality and without judgement. The lawyer will assess your matter and recommend
a course of action. Should you need a Court lawyer, even at very
short notice, the Legal Hotline staff will be able to arrange one for you. You can also
request a call back via the website gotocourt.com.au and a lawyer will call you back to assess
your matter.