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14 August 2017 No ring, not binding? De facto relationships and family law

By Sherlene Heng, Senior Associate and Esther Khoo, Graduate Solicitor

When parties separate, whether they be married or in a de facto relationship, the same laws apply in relation to the division of their property.  Since 1 March 2009, de facto couples and married couples have been able to apply to the Family Courts for Orders for the division of property. Here we answer 5 questions that frequently arise for people in a de facto relationship.

1. The "Two Year" Rule - What is a de facto relationship?

A de facto relationship is a relationship between two people:

  • who may be of the same or opposite sex;
  • who are not legally married to one another or related by family; and
  • having regard to all the circumstances of their relationship, have a relationship as a couple living together on a genuine domestic basis.

The circumstances of each relationship are assessed on a case by case basis. The circumstances that are considered to establish if persons have a relationship as a couple living together on a genuine domestic basis include any or all of the following:

  • The length of time they have been in the relationship.
  • The nature and extent to which they resided together. While having resided together is a compelling argument for a de facto relationship, it may be possible for a de facto relationship to exist although having maintained separate residences for all or part of the relationship.
  • Whether a sexual relationship exists.
  • The degree of financial dependence or interdependence and whether there are any arrangements for financial support between them.
  • Whether they own any assets together such as real property or bank accounts.
  • The degree of mutual commitment to a shared life.
  • Whether the relationship is or was registered.
  • Whether they have any children together (although having a child together does not mean of itself that a de facto relationship will be found to have existed).
  • The reputation and public aspects of the relationship, that is, are others aware of the relationship? Do others perceive them as a couple? Do they conduct themselves as a couple in public?
  • When determining whether a de facto relationship exists a Court may also consider any other matters as they may deem appropriate.

A de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship, or if the relationship is an on and off relationship. In Dahl v Hamblin [2011] FamCAFC 202, the Court held that a de facto relationship could be established even where the partners did not have a de facto relationship continuously for two years. The Court ruled there was a de facto relationship and that it could make property orders as long as the periods of relationship added up to an aggregate of two years (i.e. parties could have separated and gotten back together) and if at least one of those periods occurred after 1 March 2009.

2. "A de facto in parenting orders is different from a de facto in property orders" - When can a court make an order in relation to a de facto relationship?

Before the court can make an Order in relation to a de facto relationship the court must satisfy itself that one of the following circumstances exist:

  • that the period, or total of the periods, of the de facto relationship is at least 2 years; or
  • there is a child of the de facto relationship; or
  • that a party to the de facto relationship who applies for a court Order made substantial contributions during the relationship, whether they be financial contributions or homemaker and parenting contributions, and a failure to make an order would result in serious injustice.

In Clarence v Crisp (2016) 55 Fam LR 292, the Court held that the decision as to whether a de facto relationship exists cannot differ on the same set of facts depending upon whether the dispute is about property or children. While in determining parenting orders, the Court takes into account the best interests of the child, this factor does not determine the status of relationship between the adults involved.

3. "Everything's in my name - they can't touch it" - What can be divided?

Parties in de facto relationships can apply to the Family Courts upon the breakdown of their relationship for Orders for a division of any property that the couple own, either separately or jointly. This includes not only real property, motor vehicles, bank accounts, shareholdings in private and public companies and the like, but also superannuation. De facto partner maintenance can also be ordered.

4. "He/ She will automatically get 50/50" - How will the courts decide how property is divided?

When deciding how property will be divided, the Family Court will consider if it is just and equitable to make an Order for division. It will also consider:

  •  the value of the parties' current assets and liabilities;
  • what each party owned before the relationship;
  • contributions made by each party throughout the relationship, including financial and non-financial, and homemaker and parenting contributions; and
  •  the factors set out in Section 75(2) of the Family Law Act 1975, including who has care of any children, relative earning capacities and financial resources available to each party.
5. "We've broken up ages ago" - Timing in bringing proceedings

If you and your former de facto partner are unable to reach agreement as to the division of property and you wish to make an application to the Family Court for financial orders, you must do so within two years of the breakdown of your relationship. After this time, you will need the permission from the Court to start Court proceedings.

Sherlene Heng, Senior Associate  |  Phone: +61 2 9233 5544  |  Email: sxh@swaab.com.au

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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