What is a de facto relationship
According to section 4AA of the Family Law Act 1975 (Cth), a person is in a de facto relationship with another if the parties are not legally married to each other, are not related by family and have a relationship as a couple living together on a genuine domestic basis.
A de facto relationship can exist between two persons of different sexes and between two persons of the same sex. They can also exist even if one person is legally married or in another de facto relationship with someone else.
What factors do family courts consider?
To satisfy that a de facto relationship exists, the factors taken into consideration can include:
- the duration of the relationship;
- the nature and extent of common residence;
- whether a sexual relationship exists;
- the degree of financial dependence or interdependence and any arrangements for financial support;
- the ownership, use and acquisition of 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;
- the reputation and public aspects of the relationship.
One of the following requirements must also be satisfied, pursuant to section 90SB:
- that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
- that there is a child of the de facto relationship; or
- the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and
- a failure to make the order or declaration would result in serious injustice to the applicant; or
- that the relationship is or was registered under a prescribed law of a State or Territory.
The Family Court and the Federal Circuit Court deal with issues related to parenting or financial matters of de facto relationships in the same way as marriage relationships.
It is important to note that section 44(5) prescribes that you must apply for de facto financial orders within 2 years of the breakdown of your relationship. However, section 44(6) provides exceptions of hardship to this time period which are considered by the Courts.
Before filing an application in the Family Court and the Federal Circuit Court, it is recommended that you obtain legal advice about whether your circumstances satisfy the criteria.
Our family law team are fully equipped and able to assist with your matter and guide you through the difficult experience of separation.