The court will, firstly, consider whether the relationship is, in fact, an eligible de facto relationship, giving rise to rights and duties. It will further consider whether you are a genuine de facto couple, based on all factors considered relevant by the court.
The Commonwealth Family Law Amendment Act 2008 granted legal status to de facto relationships and deals with rights and duties that result from de facto relationships. To be successful in your application for a court order it is important to familiarise yourself with the following.
For many years in Australia, de facto relationships, even long-term ones, did not enjoy any legal recognition. Since 2009, however, legislation and amendments to the Commonwealth Family Law gave people in de facto relationships access to the law on property and maintenance matters. It also gave equal status to same-sex de facto relationships. It is important to note that these changes to the law, do not apply to parenting orders – this is covered by Australian family law that already includes children from de facto relationships.
A de facto party must, ordinarily, bring an application for a property or maintenance order to the court within two years of separation. This time limit requirement may be waived if a party can show that enforcing the time limit would result in hardship. It may also be waived, in the case of an application for maintenance, if the party would need to rely on Commonwealth benefit payments for financial support.
The law defines a de facto relationship as a relationship where parties are not legally married, are not related by family and are living together as a couple on a “genuine domestic basis”. These three requirements form the gateway requirements in deciding whether a relationship has the legal status of a de facto relationship.
The legislation also requires that:
To determine whether a de facto relationship exists, the court may consider all factors relevant to the circumstances of your relationship. The Act sets out some factors to be considered, but it is not necessary to prove any of these factors. Factors include:
Note that neither having children together nor arrangements for housework are included in the list of factors. As the list is not closed, the court may take, and have taken, such factors into account when deciding whether a de facto relationship exists.
The actual date of separation in de facto relationships can be important in deciding on a property and other financial matters. The Act, however, does not explicitly stipulate how the court should determine the date of separation. De facto relationships only exist in law for specific purposes defined by the law. This means that for de facto property law purposes, the couple will be separated when the de facto relationship, as defined by the Act, no longer exists.
In order to determine when the relationship ceased to exist, the court will “reverse” the process of determining whether a de facto relationship exists. The court will use the same factors to determine the time at which the couple became “not a couple” for the purposes of the law.
The courts have warned against applying marriage-based case law since the legal context of separation of married couples and de facto couples are not really comparable in law.
The Act specifically states that a de facto relationship may exist regardless of the fact that one, or both of the parties, is legally married to someone else. It may also exist if another de facto relationship exists at the same time.
The Act specifically notes that it applies to both heterosexual and same-sex de facto relationships.
Close personal relationships, such as carer relationships, will not give rise to rights under de facto property law. If the relationship has elements of personal care and domestic support but does not qualify as a de facto relationship, the partners in the relationship have rights only under the law in some States and Territories.
If there is a dispute regarding the de facto status of the relationship, the law provides for early resolution of such issues. A party who applies to the court for a financial order, may, at the same time (or later) apply for a declaration of the court about any of the eligibility requirements for de facto relationship. The court may decide on such matters as:
After a declaration is made, it means that those facts it refers to, no longer form part of the dispute. It takes effect as an order of the court.
If you cannot, or do not wish to, opt into the Commonwealth scheme, or if your relationship does not meet the requirements to fall under the Family Law Act, all is not lost. You may still have coverage under the relevant State or Territory property laws.