Given the financial implications of being deemed to be in a de facto relationship it is a good idea to have an understanding of what constitutes a de facto relationship. Same-sex couples may also be considered to be in a de facto relationship.
The Family Law Act 1975 (“the Act”) defines a de facto relationship as:
- People that are not legally married;
- People that are not related by family; and
- Having regard to all the circumstances of the relationship, they are living together on a genuine domestic basis.
When determining whether or not a couple are in a de facto relationship, the court will look at the circumstances of the relationship has a whole and have regard to the following:
- 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.
You may be eligible to make an application for a property settlement under the Act if you meet one or more of the following criteria:
- The period of the relationship is at least 2 years;
- There is a child of the relationship;
- One partner made substantial and significant financial or non-financial contributions to the parties property or as a homemaker, and if the court did not complete a property settlement there would be a serious injustice to one party; and
- The relationship has been registered as a de facto relationship in a State or Territory.
The Property Relationships Act 1984 applies to parties who separated prior to March 2009, however parties can agree to have their property settlement decided under the Act, your unique circumstances will determine which is the best approach for you.
There is a time limit for parties to a de facto relationship to make an application for a property settlement of 2 years from the date of separation, however in some circumstances the court can allow parties to apply after the expiration of the 2 year period.
If you are unsure of whether or not your relationship constitutes a de facto relationship and whether or not you are entitled to a property settlement, you should obtain legal advice to be clear about your status and your rights.
Alison Brown
Associate
Koffels Solicitors & Barristers
www.koffels.com.au
