When Can a Party to a De Facto Relationship Apply for a Financial Order?

If you are eligible to seek a property settlement from a Family Law Court, you must usually act within 2 years after your de facto relationship ends

The Family Law Act 1975 governs the breakdown of de facto relationships in most of Australia. Certain time limits apply, however, before you can apply to a Family Law Court for orders after your relationship ends. This article will explain those time limits.

De facto relationships

The Family Law Courts can make financial and parenting orders after a divorce. Two people who are not parents of the same child can turn to the Family Law Courts for assistance only if they have been in a de facto relationship.

Australian courts will recognize the existence of a de facto relationship if:

• You were living together
• You were not married
• The person with whom you were living is not a relative, and
• You lived together on a genuine domestic basis

Living on a “genuine domestic basis” means you lived together as if you were married. Same-sex couples can be in a de facto relationship provided that they lived together on a genuine domestic basis. You can be in a de facto relationship with someone even if you are married to someone else.

Two year relationship requirement

In most cases, if you want to apply for a financial order and were never married to the other party who would be affected by the order, you must have been in a de facto relationship for two years.

The two year period need not have been continuous. If you lived together off and on, the court will recognize your de facto relationship if the amount to time you lived together totals two years.

Family law courts will consider an application for a financial order under some circumstances even if the de facto relationship did not exist for two years. Those circumstances include any of the following:

• You and your partner have a child together.
• The de facto relationship has been registered in a state or territory.
• You made a substantial investment (financial or nonfinancial) toward property you own together and failure to enter a financial order would result in a serious injustice 

Time limit for applying for orders

If you have a child with another person, you can apply for a parenting order whenever you separate. Time limits do not apply to parenting orders.

If you were in a de facto relationship and you need a financial order to achieve a property settlement, you must make that application within 2 years after the relationship ends. Exceptions may apply if you are experiencing financial hardship after the two year period ends. You should seek legal advice if you are uncertain whether the 2 year period for applying for a financial order has expired or whether an exception might apply in your case.