Since 1 March 2009, relationships between heterosexual and same sex de facto couples have been regulated by federal family laws (except Western Australia). As a result of the relatively recent changes to the applicable family laws, de facto couples are now afforded substantially equal rights and entitlements as those enjoyed by couples who married.
Most significantly, parties to a de facto relationship now have access to the property settlement regime in the Family Law Act 1975 (Cth) (FL Act), allowing them to:
- seek maintenance orders and property adjustment orders;
- access the superannuation splitting provisions in the FL Act; and
- enter into binding financial agreements prior to, during or after the breakdown of their relationship,
in terms comparable to those which apply to couples who married (or who propose to marry).
Different rules apply to de facto relationships which broke down prior to 1 March 2009.
Under the FL Act, a de facto relationship can exist between two people of different sexes or the same sex, provided “they have a relationship as a couple living together on a genuine domestic basis”.
The FL Act does not define precisely what contitutes “a couple living together on a genuine domestic basis”. However, in determining the issue a court will, if asked, have regard to a number of factors including:
- “the duration of the relationship;
- the nature and extent of their common residence;
- whether a sexual relationship exists;
- the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
- the ownership, use and acquisition of their property;
- the degree of mutual commitment to a shared life;
- whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
- the care and support of children;
- the reputation and public aspects of the relationship.”
No finding of any particular circumstance is necessary when determining whether a de facto relationship exists, however, a court may not make an order unless it is satisfied that:
- the relationship was for at least two years;
- there was a child born of the relationship;
- the relationship was registered under a prescribed law of a State or Territory; and/or
- the party seeking to commence proceedings under the FL Act made significant financial contributions and a serious injustice would occur if the proceedings could not be commenced.
There are also certain geographical requirements for the legislation to apply, and the couple must not be related by family or legally married to each other.
Importantly, a court may not make an order adjusting the property of a de facto couple, unless the application is made within two years following separation. An extension of time may be granted under certain qualifying circumstances.
We are able to advise you about:
- your legal entitlements under the de facto provisions of the FL Act following the breakdown of your relationship
- whether your current or former spouse may be eligible to make a claim against you in relation to your property, regardless of whether such property was acquired prior to or during the relationship
- the steps that you may take to protect your property in advance of entering into a de facto relationship, or after the relationship has started or ended