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De facto Relationships Law & Lawyers

Property and financial matters for de facto couples.

A de facto relationship is defined in Section 4AA of the Family Law Act 1975. The law requires that you and your former partner, who may be of the same or opposite sex, had a relationship as a couple living together on a genuine domestic basis. However, your relationship is not a de facto relationship if you were legally married to one another or if you are related by family.

From 1 March 2009, parties to an eligible de facto relationship which has broken down can apply to the Family Court or the Federal Magistrates Court to have financial matters determined in the same way as married couples. Examples of financial matters include the adjustment of property interests or maintenance of a party to the de facto relationship.

Before the Court can determine your financial dispute, you must satisfy the Court of all of the following:

1.you were in a genuine de facto relationship with your former partner which has broken down
2.you meet one of four gateway criteria
3.you have a geographical connection to a participating jurisdiction
4.your relationship broke down after 1 March 2009 (or after 1 July 2010 if you have a geographical connection to South Australia only); although you may be able to apply to the Courts if your relationship broke down prior to the date applicable to your state.

You must apply for de facto financial orders within two years of the breakdown of your relationship. After this time you need the Court's permission to apply.

You should obtain legal advice about whether your circumstances satisfy the criteria before filing an application.

If you believe you have a De Facto Relationship matter and need help from a De Facto Relationships Lawyer, then please complete your free legal enquiry form on the right, or click here.

New De Facto Property Regime

New Commonwealth laws for the division of property for people in de facto relationships that break down commenced on 1 March 2009. The new laws commenced in South Australia on 1 July 2010.

The new laws bring separating de facto couples, on the division of property and the payment of spouse maintenance, within the federal family law regime under the Family Law Act 1975.

The new laws enable de facto couples to access, as married couples can, the Family Court of Australia and the Federal Magistrates Court (the Family Law Courts) for property and spousal maintenance matters. Cases between de facto couples concerning their children have been pwithin the federal family law regime since 1988.

What do the new laws do?

The new laws provide for de facto couples, when they separate, to obtain property settlements on the principles that apply under the Family Law Act 1975 to married couples.

This is a change from the laws that applied before 1 March 2009. Those laws also differed depending on the particular State or Territory law that applied.

The new laws enable the Family Law Courts to order a division of any property that the couple own, either separately or together with each other. Superannuation that each partner has can also be split (married couples have been able to split superannuation since 2002). Spouse maintenance can also be ordered (not previously possible in Queensland, South Australia, or before December 2008, in Victoria).

If you believe you have a De Facto Relationship matter and need help from a De Facto Relationships Lawyer, then please complete your free legal enquiry form on the right, or click here.

The Family Law Courts can make these orders if satisfied of one of the following:

  • the period (or the total of the periods) of the de facto relationship is at least 2 years
  • there is a child of the de facto relationship
  • one of the partners made substantial financial or non-financial contributions to their property or as a homemaker or parent and serious injustice to that partner would result if the order was not made, or
  • the de facto relationship has been registered in a State or Territory with laws for the registration of relationships.

If you believe you have a De Facto Relationship matter and need help from a De Facto Relationships Lawyer, then please complete your free legal enquiry form on the right, or click here.

Defacto Separation Laws

De facto relationship is between two unmarried people who live together as a couple. The Australian law was amended in 1999 to recognize relationships between same-sex couples as well. Since 2009, Australian courts have had the legal authority to issue separation decrees for de facto couples.

Jurisdiction

Family Law Courts in Australia can rule on property distribution and child custody if at least one of several requirements is met. For example, a couple was together for two years before the relationship broke down, the couple has a child, the couple is registered in an Australian state or territory that permits registration of relationships, or the parties have both contributed extensively, financially or not, to the relationship.

Property Settlement

In Australia, which Family Law Court can rule on property settlement depends on the value of the assets. Normally, a Court must issue a property settlement order.

Several factors are considered when dividing the assets. They include:

(1) assets a party brought into the relationship,
(2) non-monetary contributions to the relationship as a homemaker and caretaker of children,
(3) financial contributions, and
(4) family inheritances or gifts received.

A court will also consider the party’s needs in the future.

Factors examined include:

(1) income,
(2) responsibility as a child’s primary caretaker,
(3) age,
(4) health conditions, and
(5) whether either party is in a new relationship and is in a better financial situation.

Spousal Maintenance

Spousal maintenance is awarded only in limited circumstances during a de facto separation in Australia. First, one spouse is entitled to maintenance from the other if she is the custodian of a child 12 years old or younger, making her unable to work. If a child is handicapped, the spouse can seek maintenance if the child is up to 16 years old.

Also, if the spouse put her education or career on hold during the relationship, but wants to obtain training or education in order to rejoin the work force, she may be eligible for maintenance payments.

Child Custody

The court will create a custody arrangement that is in the “best interests of the child,” according to the law. The most significant factors a court considers are the importance of the child's maintaining a continuous relationship with both parents and keeping a child safe from abuse or from witnessing abuse against a parent.

Other general factors include:

(1) the child’s preference if the court believes he is mature enough to express it,
(2) the child’s relationship with each parent,
(3) whether both parents will cooperate in raising the child and allowing the child to continue his relationship with the other,
(4) whether the distance between the parents' homes will make maintaining a relationship with the child difficult, and
(5) each parent’s ability to care for the child and provide for his needs.

If you believe you have separated from a De Facto Relationship and need help from a De Facto Relationships Lawyer, then please complete your free legal enquiry form on the right, or click here.

Generally speaking, there are four major types of de facto relationships: These categories may present different sorts of legal issues or, depending on the circumstances, none at all.

(1) Young people, usually never married, living together as an interim measure. The relationship may be followed by marriage. This type of de facto relationship might well involve an arrangement between two economically independent people who are unlikely to have children.

(2) People living together as a response to the insecurities caused by poverty and unemployment. Under these conditions, the fulfilment of the economic rights and obligations traditionally associated with marriage may be unattainable. These relationships may include children.

(3) Divorced and separated people living together. The characteristics described in the first category may also apply in this case, but it is much more likely that these families will include children.

(4) Long-term de facto relationships in which the spouses have lived together “as married” for a considerable period of time. The relationship may have been established as a response to some of the legal, financial, emotional and religious problems formerly (and in some cases, still) associated with divorce. Children are very likely to be or to have been present in these families.

Some frequently asked questions regarding de facto relationships law:

De facto relationships

What is a de facto relationship?

A de facto relationship is defined in Section 4AA of the Family Law Act 1975. The law requires that you and your former partner, who may be of the same or opposite sex, had a relationship as a couple living together on a genuine domestic basis. However, your relationship is not a de facto relationship if you were legally married to one another or if you are related by family.

Can I apply to the Family Court or Federal Magistrates Court to have my de facto dispute determined if it's about my children?

Yes. The Family Court and the Federal Magistrates Court deal with issues related to the children of de facto relationships in the same way as the children of married couples. For more information, see the Children's Matters section of this website.

Can I apply to the Family Court or Federal Magistrates Court to have my de facto financial dispute determined?

From 1 March 2009, parties to an eligible de facto relationship which has broken down can apply to the Family Court or the Federal Magistrates Court to have financial matters determined in the same way as married couples. Examples of financial matters include the adjustment of property interests or maintenance of a party to the de facto relationship.

Before the Court can determine your financial dispute, you must satisfy the Court of all of the following:

1.you were in a genuine de facto relationship with your former partner which has broken down

2.you meet one of four gateway criteria

3.you have a geographical connection to a participating jurisdiction

4.your relationship broke down after 1 March 2009 (or after 1 July 2010 if you have a geographical connection to South Australia only); although you may be able to apply to the Courts if your relationship broke down prior to the date applicable to your state.

You must apply for de facto financial orders within two years of the breakdown of your relationship. After this time you need the Court's permission to apply.

If you have a dispute and need help from a De Facto Relationships Lawyer, then please complete your free legal enquiry form on the right, or FREE Legal Enquiry - click here.

Further Resources - De Facto Relationships Law

De facto Relationships Law & Lawyers News

NEWS: DE-FACTO RELATIONSHIPS

De Facto Property Regime

New Commonwealth laws for the division of property for people in de facto relationships that break down commenced on 1 March 2009. The new laws commenced in South Australia on 1 July 2010.

The new laws bring separating de facto couples, on the division of property and the payment of spouse maintenance, within the federal family law regime under the Family Law Act 1975.

The new laws enable de facto couples to access, as married couples can, the Family Court of Australia and the Federal Magistrates Court (the Family Law Courts) for property and spousal maintenance matters. Cases between de facto couples concerning their children have been within the federal family law regime since 1988.

If you have a dispute and need help from a De Facto Relationships Lawyer, then please complete your free legal enquiry form on the right, or FREE Legal Enquiry click here.

The new laws provide for de facto couples, when they separate, to obtain property settlements on the principles that apply under the Family Law Act 1975 to married couples.

This is a change from the laws that applied before 1 March 2009. Those laws also differed depending on the particular State or Territory law that applied.

The new laws enable the Family Law Courts to order a division of any property that the couple own, either separately or together with each other. Superannuation that each partner has can also be split (married couples have been able to split superannuation since 2002). Spouse maintenance can also be ordered (not previously possible in Queensland, South Australia, or before December 2008, in Victoria).

The Family Law Courts can make these orders if satisfied of one of the following:

  1. the period (or the total of the periods) of the de facto relationship is at least 2 years
  2. there is a child of the de facto relationship
  3. one of the partners made substantial financial or non-financial contributions to their property or as a homemaker or parent and serious injustice to that partner would result if the order was not made, or
  4. the de facto relationship has been registered in a State or Territory with laws for the registration of relationships.
What relationships are covered?

A de facto relationship is a relationship that two people who are not married or related by family have as a couple living together on a ‘genuine domestic basis’.

It can exist between 2 people of the opposite sex, or between 2 people of the same sex.

All the circumstances of the relationship will determine whether a couple have a de facto relationship. These include:

  • the duration of their 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
  • their degree of mutual commitment to a shared life
  • whether the relationship has been registered, in a State or Territory with laws for the registration of relationships
  • the care and support of children, and
  • the reputation and public aspects of their relationship.

In which States and Territories do the new laws apply?

The new laws apply to couples whose de facto relationship has a geographical connection with New South Wales, Victoria, Queensland, South Australia, Tasmania, the Australian Capital Territory, the Northern Territory, Norfolk Island, Christmas Island or the Cocos (Keeling) Islands.

Where orders are sought in the Family Law Courts, the new laws will apply if the couple were ordinarily resident in one of those States or Territories when their de facto relationship broke down.

Alternatively, the new defacto laws will also apply where court orders are sought if:

  • the couple were ordinarily resident in one or more of those States or Territories during at least one third of their de facto relationship, or
  • the party applying for the order made substantial financial or non-financial contributions to property or as a homemaker or parent in one or more of those States or Territories
  • provided that one of the parties is ordinarily resident in one of the States or Territories when the application to the court is made.

My relationship broke down before 1 March 2009 (or before the new laws commenced in South Australia on 1 July 2010). Do the new laws apply?

The new laws apply to de facto relationships that break down on or after 1 March 2009. Where a couple’s de facto relationship has one of the above-mentioned geographical connections with South Australia (and with no other State or Territory in which the new laws apply), the new laws apply to their relationship if it breaks down on or after 1 July 2010.

State or Territory laws continue to apply to couples whose relationship broke down before 1 March 2009 (and South Australian law continues to apply to couples connecte

De facto Relationships Law & Lawyers Updates

De Facto Relationships And Property Settlements

Currently in New South Wales, the Property (Relationships) Act 1984 (NSW) governs the way in which proceedings can be brought by a party to a de facto relationship who is seeking a property adjustment to jointly owned property.

A de facto relationship is defined as a relationship between two adult persons who live together as a couple and are not married to one another or related by family. In determining the nature of the relation the things considered in the circumstances in determining whether two persons are in a de facto relationship include the duration of the relationship, normal minimum requirement being two years unless there is a child involved, the nature and extent of common residence, whether or not there is a sexual relationship, financial relations between the parties, care and support of children, degree of mutual commitment and the ownership, use and acquisition of property. The definition includes same sex couples.

To commence proceedings in NSW, there are certain statutory jurisdictional based requirements, such as the length of residency in NSW during the relationship, and what have been substantial contributions, of either a financial and non-financial type, by the parties in relation to property and or financial resources of the parties. An adjustment of the property upon the application of one of the parties may be ordered by the Court who would apply a just and equitable division having regards to the contributions of the parties, both financial and non-financial by the parties. Superannuation interests can also be considered in applications for property adjustment. There is no presumption for equal division of property.

If you have a dispute and need help from a De Facto Relationships Lawyer, then please complete your free legal enquiry form on the right, or FREE Legal Enquiry - click here.

Apart from the jurisdictional issues governing the proceedings in de facto couples as compared to married couples, the outcome for de facto parties does not take into account post separation needs of the parties. In an application brought under the Commonwealth legislation, i.e. the Family Law Act, the Family Court looks at the needs of the parties post separation, when deciding on how to respond to an application to adjust the marital property. The ‘needs of the parties’ may include such considerations as the ages and health of the parties, capacity of either of them to earn an income, the financial impact that dependant children will have, and other commitments that the parties may have, any disparity in the post separation standard of living of the parties, the need to protect the party who wishes to continue as the ‘parent’ and other matters the Court considers appropriate.

Given the inequities between the two jurisdictions there is currently a proposal that will soon allow the de facto couples, including same sex couples, to use Commonwealth legislation and the Federal Courts to resolve financial issues as well as any parenting issues they may have. New South Wales along with other States, have now passed legislation allowing power in this area to be referred to the Commonwealth; and recently, the Commonwealth passed the Family Law Amendment (De facto Financial and Other Measures) Bill 2008 on 10th November 2008. This bill is yet to be enacted. Significantly, the new Act allows for maintenance applications for de facto parties, not general right under current legislation, and a similar ‘needs’ considerations post separation to be considered in an application to adjust property interest’s in de facto financial applications, which are similar in terms to the Family Law Act 1975 (Cth).

If you believe you have a De Facto Relationship matter and need help from a De Facto Relationships Lawyer, then please complete your free legal enquiry form on the right, or click here.

The Family Law Act requires a four step process in its applications, where the Court is asked to identify and value the property of the parties, look at the contributions of the parties, then consider the needs of the parties and whether the proposal is just and equitable.

If you believe you have a De Facto Relationship matter and need help from a De Facto Relationships Lawyer, then please complete your free legal enquiry form on the right, or click here.

The new Bill is couched in similar language, and importantly, now incorporates a ‘needs’ component currently not provided for in the State legislation.

The new Bill will allow for an equality of treatment of the parties whose relationship breaks down regardless of whether the parties are married or a de facto couple. The Act also provides the same protection for third parties and for the use of financial agreements to allow parties to come an agreement, before, during and after a de facto relationship, which will oust the jurisdictions of the Court. The added benefit for those couples with children is that it will allow them to affect a solution to their breakup in the one jurisdiction which specialises in this difficult area of law, with range of counselling and other non legal based services which is not available in State and Territory jurisdictions.

Another relevant piece of pending legislation is the Same-Sex Relationships (Equal Treatment in Commonwealth Laws General Reform) Bill 2008 which passed the Federal Senate on 24 November 2008, which impact on same sex couples. No doubt this area of developing law will be of great interest to legal and social commentators.

If you believe you have a De Facto Relationship matter and need help from a De Facto Relationships Lawyer, then please complete your free legal enquiry form on the right, or click here.

The 5 factors to be considered in establishing whether a de facto relationship exists are:

• financial aspects of the relationship,
• nature of the household,
• social aspects of the relationship,
• presence or absence of a sexual relationship, and
• nature of the commitment.

All 5 factors must be considered. No single factor should be seen as conclusive and not all factors need to be present. For instance, the presence or absence of a sexual relationship is considered but does not, by itself, indicate whether or not a person is a member of a couple.

Financial aspects of a de facto relationship

The degree of financial interdependence, including whether arrangements for paying household expenses such as electricity, water, food or telephone are indicative of one person providing financial support for the other.

Important indicators to consider:

• Whether both names are listed on tenancy applications, lease agreements, or mortgage applications.
• Whether one or both parties have stated the nature of the relationship with the other person on applications for accommodation, utility and telephone connections, including whether they have presented as a couple for financial gain, i.e. to obtain a loan.
• Whether one or both parties are providing financial support to the other, directly or indirectly, e.g. paying the repayments on the other person's loan.
• Whether one or both parties are claiming the other as their partner and/or dependant for taxation, health, insurance, welfare or other purposes.
• Whether there is joint ownership of major assets. Joint ownership of only a few small items such as a television or kitchen appliances is not a strong indicator of financial interdependence.
• If there are joint liabilities, e.g. a joint mortgage or loans.
• Whether one party is nominated as a beneficiary of a will, life insurance policy, superannuation payment or compensation payment.
• Whether there are joint bank accounts.
• Whether one party has a right to enforce obligations in respect of the other, such as being a guarantor for a loan for the other person.

Financial aspects can be an important factor, but lack of financial interdependence would not necessarily be a strong indicator that a person is not in a de facto relationship due to the increasing trend for couples to maintain separate finances. However, it is likely most couples in a de facto relationship will be financially intertwined in some way.

If you would like legal help from a lawyer regarding any aspect of de facto relationships law, then please complete your free legal enquiry form.

De facto Relationships Law & Lawyers Links

De facto and same-sex relationships

1 Victoria Legal Aid - Lawyers And Legal Services. A de facto relationship is when two people are not married, but live together or have lived.

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