De facto relationships
From 01 March 2009, resolving family law property disputes for de facto relationships that had broken down fell within the jurisdiction of the Family Law Act 1975. Prior to this, former de facto couples could only apply to their state courts under various legislation that was not uniform around Australia. Since the amendments, de facto couples may now seek relief in the Federal Circuit Court of the Family Court of Australia the same as parties to a marriage that has broken down.
de facto property disputes
De facto couples who have separated (including same-sex couples) are able to file an application in the Family Court of Australia or the Federal Circuit Court for a property settlement. The application is made under the Family Law Act 1975, which is the same law that applies to married couples.
If you are fortunate enough to reach agreement about how the assets of your de facto relationship should be divided, you can file an application for consent orders in the Family Court of Australia. Consent orders provide you with the security of having formal and enforceable court orders in place without the risk and expense of defended litigation.
In addition to the option of consent orders for those who reach agreement, de facto couples are also empowered enter into binding financial agreements. Binding financial agreements are private agreements which are negotiated between parties to a de facto relationship (or a marriage). Binding financial agreements can be executed prior to the commencement of the relationship (a "prenup"), during the relationship or after separation. Binding financial agreements can deal with property (including superannuation), financial resources and spousal maintenance. Both parties to a binding financial agreement must receive independent legal advice on the advantages and disadvantages of the financial agreement prior to execution.
what qualifies as a de facto relationship?
The point at which a relationship transforms into a de facto relationship capable of recognition under the family law act is not always clear cut
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family; and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
There is no specific circumstance that is regarded as strictly necessary in deciding whether the persons have a de facto relationship, and the court will have regard to a variety of matters deemed appropriate to the circumstances of the case. In order to determine whether parties are living together as a couple on a genuine domestic basis, the court will have regard to the following factors:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children; and
(i) the reputation and public aspects of the relationship.