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De Facto Relationships & Same Sex Relationships

In March 2009 the operation of the Family Law Amendment Act (2008) commenced.  This changed the way in which property division for people in de facto relationships including same sex relationships was dealt with by the Court.  Prior to the amendment the property division was dealt with in the State Court system but following amendment the matters started to be dealt with in the Federal system by the Family Court of Australia or the Federal Circuit Court of Australia.  The position of de facto’s is now similar (but not exactly the same) as the situation for people who are married.

The Family Law Act states that a de facto relationship as a person is in a de facto relationship with another person if:-

  1. The persons are not legally married to each other; and
  2. The persons are not related by family; and
  3. Having regard to all of the circumstances of the relationship, they have a relationship as a couple living together on a genuine domestic basis.

The Court takes into account the following factors when determining (in circumstances where there is a dispute about the existence of the relationship) the following factors:-

  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 the prescribed law of the State or Territory as a prescribed kind of relationship;
  8. The care and support of children;
  9. The reputation and public aspects of the relationship.

Even if some of these apply there is no guarantee that the relationship will be considered a “de facto relationship”.  These are indictors which the Family Court considers.  This can be considered when discussing factual matters.

It is not usual for there to be a dispute about whether or not there is a de facto relationship or a dispute as to the length of the de facto relationship.  Subject to exceptions, the relationship must have been in existence for at least two years. Exceptions are where one party has made significant financial contributions to the acquisition, maintenance and improvement of assets, there is a child of the de facto

Time limitations apply to the commencement of proceedings by a de facto spouse for property division.  The property division application must be made within a period of two years after the end of the de facto relationship.  This period of time is known as the standard application period. 

The Court may grant leave to a party to apply after the end of the standard application period if it is satisfied that:-

  1. They both consent to the Court having the power to make the Orders.
  2. The party seeking a property settlement obtains the Courts leave in order to proceed.  Leave to proceed with a property application out of time will not be granted unless the Court is satisfied that:-
    1. That hardship would be caused to a party to the relevant marriage or a child if leave were not granted; or
    2. In the case of proceedings in relation to the maintenance of a party to a marriage, that at the end of the period within which the proceedings should have been commenced without leave of the Court the circumstances of the Applicant were such that the Applicant would have been unable to support himself or herself without an income tested pension or allowance.

If you have recently separated from your de facto partner and would like to know your rights, please do not hesitate to telephone Dennis Grant our experienced de facto relationships lawyer at Watson & Watson today on (02) 9221 6011.

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De Facto Relationships & Same Sex Relationships Lawyers

  • Dennis Grant - Senior Family Lawyer
  • Richard Watson - Principal Family Lawyer

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Phone 02 9221 6011

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