De facto couples can now access the Family Court of Australia and the Federal Circuit Court of Australia for property and spouse maintenance matters using the same principles that apply to married people.
If your de facto relationship has broken down, you must make an Application to the Court for property orders within two years of your relationship coming to an end. You will need to apply for special leave from the Court to bring an application outside of this two year time limit.
The Family Law Act 1975 sets out some criteria and states that a person is in a de facto relationship with another person if:
The persons are not legally married; and
The persons are not related by family; and
Having regard to the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
This means a de facto relationship can exist between 2 people of different sexes and between 2 people of the same sex. It can also exist if one person is still legally married to another person or in another de facto relationship.
There are some general guiding principles as follows:
The duration of your relationship;
The nature and extent of your common residence;
Whether a sexual relationship exists between you and your partner;
The degree of financial dependence or interdependence, any arrangements for financial support between you and your partner;
Ownership, use and acquisition of your property;
Your degree of mutual commitment to a shared life;
The care and support of your children;
Your performance of household tasks;
The reputation and public aspects of your relationship.
Sometimes there can be a disagreement between you and your partner about the existence of a genuine de facto relationship. However, the Court will nonetheless have jurisdiction to make property and spouse maintenance orders if the Court is satisfied as to one of the following:
The period of your de facto relationship was at least 2 years;
There is a child of your de facto relationship; or
Either you or your partner has made a substantial financial or non-financial contributions to your property, or as a homemaker and parent, and serious injustice to either you or your partner would result if an order was not made.
In determining an Application for property settlement, the Court will take four basic steps:
Determine the net asset pool;
Assess the contributions of you and your partner;
Determine whether an adjustment need to be made for “future needs factors”; and
Looking at whether the division is just and equitable.
Alternatively you may also enter a private Financial Agreement with your partner.
For more detailed information on options and principles behind a property settlement, please see our Property Settlement section.
Parenting matters for de facto couples can also be dealt with by the Court. Please see our Parenting Arrangements for children section for more information or simply call us on (02) 9440 1202.