When does a relationship become a de facto relationship? When can a claim for Maintenance or Property Divisions be made?

16/04/2018

The Family Law Act 1975 allows parties to a de facto relationship (including same sex relationships) to make an Application for Property Division and Maintenance following breakdown of de facto relationships. 

There is a common misconception that in order to be in a de facto relationship the parties must be living together.  This is not the case. It is more complex arrangement.

The Family Law Act defines a de facto relationship as set out in Section 4AA of the Family Law Act.  That section provides that a person is in a de facto relationship with another person if:

(a)       The persons are not legally married to each other; and

(b)       The persons are not related by family (see subsection (6)); and

(c)       Having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis. 

If there is a dispute about whether a de facto relationship exists and the Court is asked to decide whether there is a de facto relationship, the Court will look at the following factors:

  • The length of the relationship.  The relationship must be of at least 2 years for a property settlement or maintenance but if there is a child of the relationship or whether other relevant circumstances exist, it can be a shorter time.
  • Whether the parties live in the same home.  It is possible for the Court to find that a de facto relationship is in existence without the parties having lived in the same home for the whole or a least part of the relationship. 
  • The existence of a sexual relationship.
  • The degree to which the finances of each of the parties are related and extent to which they support each other financially.
  • The existence of jointly owned property such as land or bank accounts or other investments.
  • What other people think - public reputation - Appearing to be a couple in a wider circle of friends, to the public or with family can be a strong indicative factor. 
  • If the parties have a child or children then this is a strong indicator of a de facto relationship

Similarly when making an Application for Property Division when married, time limits apply in making an Application for Property adjustment or maintenance for de facto couples.  That period in the Family Law Act and is 2 years from the date of the end of the relationship. Any claim for maintenance or property division must be commenced before the expiration of that period. 

In the recent case of Weldon and Levitt the Family Court of Australia dismissed Mr Weldon’s Property Application claim.  The Court made a declaration that there was no de facto relationship and that there was no basis upon which he could make a claim for Property adjustment and maintenance. 

In all the circumstances of the case, the Court found that while the duration of the relationship was for 16 years the parties remained boyfriend and girlfriend only.  There were two children of the relationship but over the period of 16 years they had only lived in the same home for one of those 16 years. 

The Respondent had not told Centrelink that she was in a de facto relationship and she alone had bought the property and it was in her sole name. 

A statement made to a Government agency can be good evidence of the true nature of the relationship – independent of each party – the case confirms that the Court will look at all of the circumstances in each matter.  On the other hand a false statement to a government agency can be subject to prosecution and in addition be detrimental to your case.

The outcome confirms the need to carefully consider and assemble the proper evidence to commence or continue a claim. 

Watson & Watson regularly conduct property division and maintenance claims for de facto couples.  If you are at end of a de facto relationship are and unsure as to your rights and entitlements in relation to financial/property settlement or maintenance for a child/ren please contact Richard Watson Family Law solicitor or Shereen Da Gloria his Assistant to discuss your concerns.

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