Family Law

De Facto Relationships

We specialise in all financial matters dealing with marriage or other relationship breakdowns including de facto and same sex relationships.

De facto partners in Australia have the same legal status as those who are married. However, there are issues specific to de facto relationships, including same sex relationships, which may require specialised legal advice.  The experts at Genesis Edge  have the dependable skill to provide you with the right support, advice and guidance if you need legal assistance with de facto matters.

What is a de facto relationship?

A de facto relationship is one between individuals which is close, intimate and cooperative, and in many aspects synonymous with marriage. The critical difference between a de facto relationship and a marriage is the absence of legal marriage carried out by an authorised marriage celebrant. A de facto relationship is defined in the Family Law Act 1975 (Cth) as two people who are not legally married to each other; and are not related by family; and having regard to all the circumstances of their relationship; they have a relationship as a couple living together on a genuine domestic basis. De facto relationships can exist between 2 persons of the same sex and between 2 persons of different sexes.

What factors are indicative of a de facto relationship?

In making a determination as to whether a de facto relationship exists, the Court may consider:

  • The duration 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 agreements 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 under a prescribed law of a State or Territory as a prescribed kind of relationship;
  • The care and support of children; and
  • The reputation and public aspects of the relationship.

Importantly, the Court is not bound by any particular finding in relation to any of the above circumstances. Further, the circumstances are non-exhaustive and in particular cases other factors may be of importance.

If you are unsure as to whether you are in, or have been in, a de facto relationship in the eyes of the law please contact our expert family law team at Genesis Edge for assistance with your matter.

Registering a de facto relationship

You may consider registering a de facto relationship through your state’s Registry of Births, Deaths and Marriages. A registered civil union or de facto relationship may give you rights for property division.

My de facto relationship has broken down, am I eligible to make a claim for assets?

If it is shown that a genuine de facto relationship existed, and has broken down, the same laws that apply to married people in terms of property division generally also apply to de facto couples, however, there are some important elements to consider.

One of four criteria must first be satisfied in order for someone to commence a claim for property settlement and/or “spousal” maintenance upon the breakdown of their de facto relationship. These criteria include:-

  1. That the period, or the total of the periods, of the de facto relationship is at least two years; or
  2. That there is a child of the de facto relationship; or
  3. That significant contributions were made, or are being made, by one of the parties to the de facto relationship and the failure to make an Order or declaration would result in serious injustice to them; or
  4. That the relationship is or was registered under a prescribed law of a State or Territory.

Where the de facto relationship broke down on a final basis after 1 March 2009, and at least one of the abovementioned criteria are satisfied, the applicant will be able to commence proceedings in the Federal Circuit and Family Court of Australia.

It also important to remember that a party has up to two years to apply for financial Orders (such as a property settlement, or maintenance) from the date that their de facto relationship ends (the date of separation). If a person wishes to apply for Orders after the two year period has elapsed, they will have to first seek the Court’s permission (known as ‘leave’ in legal speak).

How to divide property after separation?

Assuming that these preliminary matters are satisfied, the Court will generally deal with the de facto matter in a very similar way as to how they would when legally married couples (whose relationship has broken down) commence proceedings. There are three ways of settling a matter as a result of the breakdown of a de facto relationship:

  1. By Consent Orders formalised by the Court through an application to the Court; or .
  2. Through a Financial Agreement without Court intervention; or
  3. By initiating an application for Court Orders in the Federal Circuit and Family Court of Australia.

However, important differences do exist; for an understanding of how the law may apply to your unique circumstances, please make an appointment with one of our highly qualified and experienced family lawyers at Genesis Edge Law Group.

Contact us