De Facto Relationships

From 1 March 2009, financial arrangements following the breakdown of a de facto relationship are dealt with under the provisions of the Family Law Act. A de facto relationships can be either opposite sex or a same sex relationship.

 

To have jurisdiction to make a financial Order in a de facto relationship under the Family Law Act, a number of criteria must be satisfied -

 

  1. The parties must have been in a de facto relationship;

  2. At least one of the parties to the de facto relationship must be an Australian Citizen or an Australian Resident and be present in Australia on the day any Court proceedings are commenced;

  3. The period, or total periods, of the de facto relationship, must be at least two years (there are some exceptions to this requirement);

  4. One or both of the parties must be ordinarily resident in an Australian territory or a State which has conferred power to legislate on de facto relationships to the Commonwealth, and the party lived in that State for at least a third of the relationship (States which have conferred power on the Commonwealth to legislate on de facto relationships include Queensland, New South Wales, Victoria and Tasmania).

 

Proceedings for property settlement following the breakdown of a de facto relationship must be commenced within two years from the date of separation.

 

It is not always easy to determine whether or not parties are in a de facto relationship. Under Section 4AA(2) of the Family Law Act, some of the factors to be taken into account when determining whether or not a de facto relationship exists includes-

  1. the duration of the relationship;
  2. the nature and extent of their common residence;
  3. whether a sexual relationship exists;
  4. the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
  5. the ownership, use and acquisition of their property;
  6. the degree of mutual commitment to a shared life;
  7. whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
  8. the care and support of any children of the relationship;
  9. the reputation and public aspects of the relationship.

 

It is not necessary for each of the above factors in Section 4AA(2) to be present for a de facto relationship to exist.

If a de facto relationship is not found to exist, it is still possible for the Court to determine that a domestic relationship (as defined by the Property Relationships Act (NSW)) to exist and a claim can be brought under that legislation.

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