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Was I In A De Facto Relationship?

May 28, 2014

Were you in what is considered a De Facto Relationship? If so, are you entitled to a share of the property? This article will help you get an idea of where you stand at the end of a relationship.

Note: This article applies to relationships which broke down after 1 March 2009 (1 July 2010 in South Australia). It does not apply to Western Australia regardless of when the relationship broke down (State law still applies in WA).

How do I know if my relationship was a de facto relationship?

What is the legal definition of a de facto relationship?

Section 4AA of the Family Law Act defines two people as being in a de facto relationship if:

  1. they are not legally married to each other;
  2. they are not related by family; and
  3. having regard to all of the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

The circumstances relevant to whether two persons have a relationship as a couple include:

  • the length 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 in a State or Territory;
  • the care and support of children;
  • the representation and public aspects of the relationship.

A de facto relationship can exist between two persons of different sexes and between two persons of the same sex. A de facto relationship can also exist even if one of the persons is legally married to someone else or in another de facto relationship.

Whether a de facto relationship exists is a question of fact, the answer to which will determine if a person has the right to apply for maintenance or property. At Davoren Associates, we can assist you through this difficult area and point you in the right direction.

If a de facto relationship did exist, how do I know if I am eligible to apply to the Court for Orders concerning maintenance or property?

Pursuant to Section 90SB of the Family Law Act, a Court may only make an Order concerning maintenance or property in relation to a de facto relationship if it is satisfied:

  • that the period, or total of the periods, of the de facto relationship is at least two years; or
  • there is a child of the de facto relationship; or
  • that:
       *the person who applies for the order made substantial contributions of the following kind:
    1. a financial contribution made directly or indirectly to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship; and
    2. a contribution other than a financial contribution made directly or indirectly to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship; and
    3. a contribution made by a party to the relationship to the welfare of the family including any contribution made in the capacity of homemaker or parent;
         *and failure to make an Order would result in serious injustice to that person; or
  • the relationship is or was registered in a State or Territory (Tas, Vic, ACT and NSW).

The Court must also be satisfied:

  • that either or both parties to the relationship were ordinarily resident in a participating jurisdiction (the participating jurisdictions being Tasmania, Victoria, ACT, New South Wales, Queensland, South Australia or the Northern Territory) when the application was made; and
  • that either:
    1. both parties to the relationship were ordinarily resident in a participating jurisdiction during at least a third of the relationship; or
    2. the person making the application made substantial contributions (ie financial, non-financial or home maker parent contributions as per above) in one or more of the participating jurisdictions when the application was made; or
  • the parties were ordinarily resident in a participating jurisdiction when the relationship broke down.

Are there time limits that apply to making an application to the Court?

A party to a de facto relationship may apply for a property and/or maintenance Order only if the Application is made within two years after the end of the relationship. The Court may grant leave to apply out of time if it is satisfied:

(a) hardship would be caused to a party or child if leave were not granted; or
(b) for maintenance cases – the person making the application would have been unable to support himself or herself without an income tested pension, allowance or benefit as at the time limit (ie as at the date which is two years after the parties separated).

Which Court?

If the de facto relationship broke down after 1 March 2009 (1 July 2010 in South Australia), proceedings for property and/or maintenance are issued under Part VIIIAB of the Family Law Act and should be instituted in the Federal Circuit Court of Australia. The exception are cases that are complex and likely to take more than two hearing days in which case proceedings should be instituted in the Family Court of Australia.

State and Territory laws still apply to de facto relationships that broke down before 1 March 2009 (1 July 2010 in SA) although parties may choose to choose to have their matter dealt with under Part VIIIAB of the Family Law Act.

What types of property orders can the Court make?

In property settlement proceedings, the Court may make such order as it considers appropriate:

  • altering the interests of the parties in the property: including
  • an order for a settlement of property in substitution for any interest in the property; and
  • an order requiring either or both of the parties to make, for the benefit of either or both of the parties or a child of the relationship, such settlement or transfer of property as the Court determine.

Section 90SM(4) of the Family Law Act sets out the matters the Court must take into account in considering what order (if any) should be made in property settlement proceedings.

What about maintenance? Am I eligible?

Section 90SE of the Family Law Act empowers the Court to make such order as it considers proper for the provision of spousal maintenance of one of the parties to the de facto relationship.

In exercising jurisdiction under section 90SE, the Court must apply the principle that a party to a de facto relationship must maintain the other party to the de facto relationship, to the extent that the party is reasonably able to do so if, and only if, the other party is unable to support himself or herself adequately by reason of:

  • having the care and control of a child of the relationship who is under the age of 18 years; or
  • the age or physical or mental incapacity of the person for appropriate gainful employment; or
  • any other adequate reason.

This is known as the threshold test.

Section 90SF(3) of the Family Law Act sets out the matters the Court must take into account when applying the above principle.

The types of maintenance Orders made by the Court include any or all of the following

  • an order for the payment of a lump sum, whether in one amount or by instalments;
  • an order for payment of a weekly, monthly, yearly or other periodic sum;
  • an order that a specified transfer or settlement of property be made by way of maintenance.

The amount and/or the duration of the payment will differ from case to case.

Checklist

  • de facto relationship in which one of the following criteria is met;

relationship of two years
child of the relationship
substantial contributions
relationship registered in participating jurisdiction

  • resident in a participating jurisdiction at time of application
  • ordinarily resident in participating jurisdiction when relationship broke down
  • relationship broke down after 1 March 2009 (1 July 2010 in SA)
  • two years within separation

Contact us

Contact Davoren Associates to discuss your circumstances. Our team of dedicated professionals are happy to assist you through this area of law. We aim to make the process as simple as possible whilst ensuring you have received comprehensive legal advice specific to your individual Family Law needs.

If you would like further information or wish to schedule an initial consultation, please do not hesitate to contact us on (07) 5575 2844. Our Family Law team will be only too happy to assist you with all your needs.