De Facto Relationships

Since 2009, de facto couples across Australia have had similar rights and obligations as married couples. So in many cases, the same rules apply as for any separation or divorce.

However, in many de facto cases, a preliminary issue in property proceedings is a declaration about whether a de facto relationship exists between the parties. Under the Family Law Act, a person is in a de facto relationship with another person if they are not married or related to each other and, having regarding to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis. This includes same sex partners and can exist if a partner is married to someone else or is in another de facto relationship.

When considering whether a de facto relationship exists, the court will take into account the following:

• length of the relationship
• nature and extent of your common residence
• whether a sexual relationship exists
• degree of financial dependence and support
• care and support of children
• ownership, use and acquisition of property
• degree of mutual commitment to a shared life
• reputation and public aspects of the relationship
• whether your relationship is or was registered under a State law

Further, the Family Law Act provision relating to property orders and/or maintenance orders only apply when one of the following conditions are met:

• the period, or the total periods, of the de facto relationship is at least two
• there is a child of the de facto relationship
• one or both parties to the de facto relationship made substantial contributions such that a failure to make orders under the Family Law Act would be seriously unjust
• the de facto relationship is or was registered under a State law.

It is important to keep in mind that time limits exist with respect to property and/or maintenance applications under the Family Law Act. Proceedings must be commenced within two years of the date that the relationship ended and the parties separated. You will not be able to bring proceedings outside of this time period without the consent of the parties or the leave of the court.