Family law usually applies, but the rules are different if you live in Western Australia

Federal law governs de facto property settlements in most of Australia. The exception is Western Australia. This article will explain how your current or past residence in Western Australia could affect your ability to apply for a de facto property settlement in a federal Family Law Court.

Family law is different in Western Australia

Western Australia is the only state that has its own family court. The Family Court Act 1975, a state law in Western Australia, created that court. Most of its funding, however, comes from the Commonwealth.

The federal law that applies to divorce in Australia is the Family Law Act 1975. If you want a property settlement after a divorce in any state or territory other than Western Australia, you apply to a federal Family Law Court. In Western Australia, you apply to the Family Court of Western Australia.

Although the Family Court of Western Australia applies federal divorce law when married couples seek financial or parenting orders, it applies state law to unmarried couples who want parenting orders or orders that provide for property division or maintenance. State law in Western Australia was amended in 2002 to address de facto relationships.

Where you live determines the applicable law

If you are in a de facto relationship and you and your partner both live in Western Australia when your relationship breaks down, your property settlement will be governed by state law rather than federal law. You would apply for a property settlement in the Family Court of Western Australia.

If you are in a de facto relationship and you and your partner both lived outside of Western Australia when your relationship breaks down and never lived in Western Australia, your property settlement will be governed by federal law. You would apply for a property settlement in a Family Law Court in the state or territory where you live.

If you are in a de facto relationship and one of you lives in Western Australia when the relationship breaks down, you are only eligible to apply for a property settlement under federal law outside of Western Australia if:

• the party living in the state where the application is made is ordinarily a resident of that state, and
• the parties lived together in Western Australia for less than two-thirds of their relationship.
• If both of those conditions are not met, state law applies and you must file your application in the Family Court of Western Australia.