According to the Australian Bureau of Statistics, provisional data released for January to June 2020 shows a 31.9% decrease in marriages in Australia. While the current rate of marriages is declining, the ever-changing structure of relationships and family units continues to call into question the rights and entitlements to a property settlement for separating de facto couples.
This article examines the definition of a de facto relationship in Australia. As indicated below, there is no automatic entitlement to a property settlement and/or maintenance even where the existence of a de facto relationship is established. Specific proposal settlement entitlements (if any) will vary on case-by-case basis.
What is a de facto relationship?
The Family Law Act 1975 (Family Law Act) sets out the factors considered by the Court when determining whether a de facto relationship existed. These include:
- The duration of the relationship;
- The nature and extent of their common residence;
- Whether a sexual relationship exists;
- The degree of financial dependence or interdependence, and any arrangements for financial support, between them;
- The ownership, use and acquisition of their 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; and
- The reputation and public aspects of the relationship.
No particular finding is determinative of whether a de facto relationship existed. The Court is required to weigh the above factors and exercise its discretion having regard to the circumstances of each case. For that purpose, a de facto relationship can exist between two persons of different sexes and between two persons of the same sex, regardless of whether one of the persons is legally married to someone else or in another de facto relationship.
The Court’s discretion ensures that each case is considered based on its merits. This may include, for example, long-distance relationships where the parties do not live together, polyamorous relationships and/or long-term casual relationships involving financial dependence or interdependence. Evidence that may be relevant in those circumstances may include personal text messages between the parties, social media content, and/or bank account records.
Property settlement and maintenance
The Court may make property settlement and/or maintenance orders if the Court is satisfied that:
- The period, or the total of the periods, of the de facto relationship is at least 2 years; or
- There is a child of the de facto relationship; or
- The party to the de facto relationship made substantial contributions to the acquisition, conservation or improvement of property, and a failure to make the order or declaration would result in serious injustice to the applicant; or
- The relationship is or was registered under a prescribed law of a state or territory.
Any entitlements to property settlement and/or maintenance is not automatic and will depend on the facts of each case.
The time limit to make any application to the Court for property settlement and/or maintenance for de facto relationships is two years from the date of separation. If proceedings are not commenced within the two-year time frame, permission is required to be sought from the Court on the basis of hardship.
Financial Agreements
De facto couples have the ability to contract out of the Family Law Act in the same way as married couples by entering into a Financial Agreement. Financial Agreements can be entered into before, during or after a de facto relationship. Where possible, consideration should to be given to entering into a Financial Agreement as a means of protecting assets and/or avoiding time consuming and costly Court proceedings in the event of separation in future. See our earlier post on Financial Agreements.
Should you require any assistance understanding your rights and entitlements, our family law team is available to help and can be contacted during normal business hours via email (adminfamily@khq.com.au) or by telephone on (03) 9663 9877.
This article was written by Stefan Pantellis (Senior Associate) and Monica Blizzard (Director).
