On 1 March 2009 a new section was added to the Family Law Act 1975 which applies to de factos separating after that date. People living in such relationships have exactly the same property settlement and maintenance entitlements as married couples. This applies to people living in both heterosexual and same-sex de facto relationships. All de facto matters are handled by the Family Court and Federal Circuit Court under the amendments to the Commonwealth Act.
What is a de facto relationship?
The Family Law Act 1975 defines a de facto relationship as “a relationship of a couple living together on a genuine domestic basis”. This definition is much the same as under the old system.
In many cases it will be mutually agreed or easily proven that a couple is living in a de facto relationship. However, there will be cases where the existence of of a de facto relationship is in dispute, and one party would like to have the Family Law Act 1975 apply following separation and the other may not.
In determining the existence of a de facto relationship the Court may take into account the following factors:
- 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 or not the relationship has been registered under State laws
- The care and support of children
- The reputation and public aspects of the relationship
It is important to note that the Family Law Act 1975 states that no particular factor is overriding and the absence of a factor will not mean that there is no de facto relationship.
Duration of the relationship
Under the Family Law Act 1975 a relationship will generally be considered to be de facto in nature if it is greater than two years duration. However, if the relationship has existed for less than two years the following matters can also be taken into account:
- If there is a child of the relationship
- If one party has made a substantial contribution and there would be serious injustice if that were not taken into account
- If the relationship has been registered under the Relationships Act
The Family Law Act 1975 states that an application for property settlement or maintenance must be issued within two years after the date of separation. However, the Family Court has the power to allow someone to bring claims outside the two year period if hardship would be caused to a party or a child if leave were not granted.
Benefits for de factos
The amendments have made it easier for lawyers to assess what may be a fair property settlement because of the large body of case law and experience in dealing with the Family Law Act 1975. This should make it easier for people leaving de facto relationships to reach early settlement agreements.
Even though it will not be cheap to take action in the Family Court or the Federal Circuit Court it is likely to be more financially feasible than going through the State courts.
Any court proceedings under the Family Law Act 1975 are confidential which is in contrast to the State system. It is a criminal offence to publish any details of such matters including information that would enable identification of parties involved in the proceedings.
The Family Court has the power to make orders for the splitting of superannuation benefits as part of a de facto property settlement. This will assist in situations where one party’s super is a large proportion of the asset pool.
For further information contact one of our expert Family Lawyers today.