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When does a relationship become a “de facto relationship”?

In family law matters (particularly property settlement matters), it is important to determine whether you and your partner are considered to be in a de facto relationship or not. If you satisfy the criteria for a de facto relationship, then there may be various implications if you separate.

De Facto Criteria

You and your partner may be considered to be in de facto relationship under the Family Law Act 1975 (Cth) if you have a relationship as a couple, living together on a genuine domestic basis. Some of the factors that a Court may take into account in determining whether a de facto relationship exists on a genuine domestic basis include:-

  • The duration of the relationship;
  • The nature and extent of your common residence (such as how many nights you spend together and whether you help each other with tasks in the common residence like mowing the lawn or cleaning the house);
  • Whether an intimate relationship exists;
  • The degree of financial dependence/interdependence and any arrangement for financial support between you (like who pays for groceries, bills and the like); 
  • Whether you own any items of property together, use property together (like share a car) or whether you contributed to the purchase/deposit on a house;
  • The degree of your commitment to a shared life (whether you have plans for the future);
  • Whether you have children together and how you share care of those children;
  • Whether your de facto relationship is ‘registered’; and
  • The reputation and public aspects of your relationship (whether you introduce your partner to your friends, colleagues and the general public as your “partner” or not).

Importantly, you don’t need to tick all of the above boxes to be considered to be in a de facto relationship.

Interestingly, you can be considered to be in a de facto relationship with one person, even if you’re still married to another person.

Court Requirements

Another important factor to note is that even if you’re considered to be in a de facto relationship, you may not yet satisfy all the criteria required to make an Application the Federal Circuit Court for property settlement and/or spousal maintenance matters. In addition to being considered to be in a de facto relationship, in order to file an Application in the Court, you must:-

  • Meet one of the following criteria:
    • That you’ve been in a de facto relationship for at least two (2) years;
    • That there is a child in the de facto relationship;
    • That the relationship is or was registered under a prescribed law in a State of Territory;
    • If one or both of you has made significant contributions and a failure to make an order would result in a serious injustice (for instance – if you haven’t been together for two years but one or both of you have made significant contributions that justify the Court’s intervention otherwise one or both of your would suffer a serious injustice).
  • You have a geographical connection to a participating jurisdiction (meaning you, your partner, or both of you, must have been living in a participating jurisdiction – any State or Territory of Australia aside from Western Australia – at the date you commenced the proceedings).
  • Your relationship broke down after 1 March 2009 (or after 1 July 2010 if you have a geographical connection to South Australia only).

Time Limits

If you have separated from your de facto partner and you need assistance from the Federal Circuit Court to determine your property settlement and/or spousal maintenance matters, you must file an Application within two (2) years from the date of your separation. This is different to the time limit following a Divorce, which is that you only have one (1) year from the date your Divorce takes effect in which to seek the Court’s assistance. After the two (2) years has expired since your separation, you will need the special permission of the Court to apply, which is granted in limited circumstances only.

If you would like some assistance or advice about your de facto relationship, please contact us on (07) 4638 1133.

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