Asking the Family Court for a Declaration of a De Facto Relationship

If one member of an unmarried couple wants maintenance or a property settlement, that person may ask the court to declare the existence of a de facto relationship.

In all states and territories except Western Australia, separating couples who have not married can turn to the Family Law Courts to resolve their property and parenting disputes using the procedures that are available to married couples. The law applies to same sex and to opposite sex couples, provided they are in a qualified de facto relationship. When the existence of a de facto relationship is in dispute, either party may ask the court for a declaration that a de facto relationship did or did not exist.

What is a de facto relationship?

A de facto relationship exists when a couple:

• lives together on a genuine domestic basis,
• without being married to each other, and
• without being related to each other as family members.

When can a member of a de facto relationship obtain a financial order from a Family Law Court?

A Family Law Court can make a property settlement or enter a maintenance order that governs the members of a de facto relationship if:

• the de facto relationship existed for 2 years, or
• the couple has a child, or
• it would be seriously unjust not to enter an order in light of the contributions one party made to the relationship, or
• the relationship is registered with a state or territory.

What is a declaration of a de facto relationship?

When one member of a couple who claims to be in a de facto relationship applies to the court for a property settlement or for maintenance, either member of the couple can ask the court for a declaration that the de facto relationship existed or did not exist before the relationship ended. The request for a declaration is often made by a person who opposes the order on the ground that no de facto relationship existed and that the court is therefore powerless to award maintenance or to change ownership of property.

To decide whether a couple lived together on a genuine domestic basis, a court will consider:

• the duration of the relationship,
• whether the couple shared a residence,
• whether the couple had a sexual relationship,
• whether the couple intermingled their finances or depended on each other for financial support,
• how the couple shared ownership and use of property,
• the degree to which the couple shared their lives,
• whether the couple registered their relationship in a state or territory,
• whether the couple had children and how they share parenting obligations, and
• how their relationship is perceived by the public.

The court balances the various factors but no single factor is required to exist. The court will consider the totality of the circumstances when it declares that a de facto relationship did or did not exist.