A de facto relationship can exist between two (2) people of the same or opposite sex. A de facto relationship can also exist even if one or both of the parties are legally married to someone else, or, in another de facto relationship.
The Family Law Act provides that parties will be considered to be in a de facto relationship if they are:
- Not married to each other;
- Not related by family; AND
- Have a relationship as a couple living together on a genuine domestic basis.
The Family Law Act does not provide a timeframe that a couple needs to be living together before their relationship is considered a de facto relationship.
It is a common misconception that couples need to live together on a full-time basis for a certain period of time (usually two (2) years) to be in a de facto relationship.
A relationship would likely be considered to be a de facto relationship from the time a couple started living together on a genuine domestic basis.
What is a “Genuine Domestic Basis”
The Family Law Act sets out a wide variety of circumstances that should be considered including, but not limited to:
- The length of the relationship;
- Whether the relationship was sexual in nature;
- Whether there are children of the relationship;
- The extent and nature of a shared residence;
- Mutual commitment in and to the relationship;
- The public aspects of the relationship including public perceptions of the relationship;
- Financial aspects of the relationship (such as financial dependence or independence); and/or
- Ownership, use and acquisition of the parties’ property.
The Courts have made it clear that is it not a prerequisite for all of the above factors to be present.
De Facto Property Settlement
In the event that the Court determines that parties to a relationship are in a de facto relationship, the Court may not make an order for the division of assets unless:
- The total period of the de facto relationship is at least two (2) years;
- There is a child of the de facto relationship; OR
- The person applying for the order has made substantial contributions to the relationship and there would be a serious injustice to that party if an order was not made.
A party does not have a right to a distribution of property, simply by reason of establishing that they were living together in a genuine domestic basis for a total period of at least two (2) years.
Property may be distributed between parties having regard for their contributions during the relationship. These contributions can be:
- Non-financial; and/or
- Parenting/home maker.
A party to a de facto relationship, parties has two (2) years from the date of separation in which to bring an application for a property settlement. A party may be prevented from starting an application once this time limit has lapsed.
If you are unsure whether you are able to make an application to the Court for a property settlement arising out of your de facto relationship, please contact our specialist family law solicitors via email or call 02 4324 56 88.