De facto Relationships Law & Lawyers

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

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