De facto separation rights in a family law settlement

by Lajita Allan- Agnew

Commonwealth laws for the division of property for people in de facto relationships that break down commenced on 1 March 2009. Prior to 2009, the laws for division of property that were applied to a married couple did not apply to a de facto separation. The laws commenced in South Australia on 1 July 2010. The laws provide for de facto couples, when they separate, to obtain property settlements on the principles that apply under the Family Law Act 1975 to married couples.

What relationships are covered?

A de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and even if one of the persons is legally married to someone else or in another de facto relationship.

Was my relationship De Facto?

A person is considered to be in a de facto relationship with another person if, the persons are not legally married, they are not related by family and having regard to all of the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

What circumstances constitutes “A relationship as a couple”

The Court considers those circumstances that may include any or all of the following:

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;
the reputation and public aspects of the relationship.

I am in a de facto relationship – what does that mean for my property settlement?

It means that when a couple separate, they can obtain property settlements on the principles that apply under the Family Law Act 1975 to married couples.

Under these laws, the Family Law Courts can order a division of any property that the couple own, either separately or together with each other. Superannuation that each partner has can also be split and spouse maintenance can also be ordered.

What do The Family Law Courts consider when making property orders?

They consider the following:

the period (or the total of the periods) of the de facto relationship is at least 2 years
there is a child of the de facto relationship
one of the partners made substantial financial or non-financial contributions to their property or as a homemaker or parent and serious injustice to that partner would result if the order was not made, or
the de facto relationship has been registered in a State or Territory with laws for the registration of relationships.

When my de facto relationship ends, how much time to I have to make an application in Court?

Under the Family Law Act, a party to a de facto separation can bring an application for a property settlement or maintenance within two years of the relationship ending. In the event that two years have passed, an application for a property settlement can only be made with the consent of the parties or with permission from the court.

If you have a question, require further information and or legal representation, please contact our office and we will make an appointment for you at your earliest convenience.

For more information on how much you could get out of a financial separation, click here.

For more information on splitting superannuation after a separation, click here.

De facto separation rights in a family law settlement