De Facto Property Determination under the Family Law Act
Publish Date: June 15, 2012
Amendments which came into effect on 1 March 2009 have been made to the Family Law Act 1975 (“the Act”) to grant power to the Federal Courts to deal with property and spousal maintenance claims upon the breakdown of heterosexual and same sex de facto relationships.
If the breakdown of a de facto relationship occurs after 1 March 2009, a person will only be able to institute proceedings concerning financial matters against their former defacto partner under the new provisions of the Act. In New South Wales the Family Court of Australia and the Federal Magistrates Court of Australia will have jurisdiction to hear such claims.
Was my relationship a de facto relationship?
The amendments to the Act define the meaning of “de facto relationship” as a relationship with another person where:-
the persons are not legal married to each other;
- the persons are not related by family;
- having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Factors taken into account to determine whether a relationship was in fact a de facto relationship are as follows:
the duration of the relationship;
- the nature and extent of the parties’ common residence;
- whether a sexual relationship exists;
- the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;
- 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.
As illustrated above, the amendments show that people are not able to be classified living in de facto relationship if they are related by family. Such “family” relationships include a parent/child relationship, a descendant relationship, or couples who have a parent in common, including adoptive parents. A couple which is determined as having a “family” relationship would be required to seek a remedy upon the breakdown of their relationship under State legislation.
How to qualify
The Court not only needs to be satisfied that a de facto relationship exists, an applicant to proceedings under the Act must also be able to prove to the Court that one of the following has been satisfied:
- the relationship lasted at least two (2) years; or
- there is a child of the de facto relationship; or
- the party seeking the Court order/declaration made substantial contributions to the relationship; or
- a failure to make the order/declaration would cause a party serious injustice; or
- the relationship is or was registered under a prescribed law of a State or Territory.
Amendments to the Act states that a de facto relationship can exist despite one or more parties in the relationship being legally married to another person, or if one or more is involved in another de facto relationship. Currently, de facto couples in Tasmania, Victoria and the Australia Capital Territory are able to register their relationships on a government relationship register. The registration of a relationship is not, however, determinative of the fact that a de facto relationship actually existed and further factors need to be taken into account to prove the existence of such a relationship.
A “child of the de facto relationship”
A child of the relationship includes a child whose parents are both parties of the relationship, a child adopted by the parties or by either one with the consent of the other, a child born as a result of an artificial conception procedure whilst the parties were living together on a genuine domestic basis and the procedure was carried out with their consent.
Can I make a claim under the Act?
To be able to make a claim under the Act the de facto relationship would need to have broken down after the commencement of the new laws on 1 March 2009. If your de facto relationship broke down before the commencement of the new laws, you will need to seek remedies under State legislation, unless both parties consent to “opt in” to the new legislation.
What if a de facto couple marries?
The amendments state that the particular provisions under the Act with regards to de facto couples cease to apply if the members of a de facto relationship were to subsequently marry one another. If the above marriage broke down, the provisions of the Act concerning married couples would then apply.
The amendments to the Act provide that financial applications must be brought in a de facto matter within two (2) years after the end of a de facto relationship. The only exceptions are in circumstances where hardship would be caused to a child of the relationship or a party if leave were not granted; or for maintenance applications where the party’s circumstances are such that he/she would have been unable to support himself/herself without an income tested pension, allowance or benefit.
Binding Financial Agreement (BFA) with a married party or a de facto partner
The new provisions of the Act also provide that de facto partners can enter into Financial Agreements similar to those entered into by married couples.
The new laws give Courts the power to split superannuation interests of de facto parties. This means that superannuation of the parties will now be treated as property for the purposes of the Act. Superannuation Agreements will still be able to exclude the Courts’ jurisdiction in relation to superannuation between de facto couples, as with married couples.
The laws do not consider death to be a “breakdown” of a relationship. If a relationship has broken down and later a party dies, as long as an application was made prior to the death of the party, the Court has jurisdiction to finalise the application.
If a person receiving maintenance under a Maintenance Order has entered into a stable and continuing de facto relationship, the Court may order the Maintenance Order to be modified.
Close personal relationships
Close personal relationships are not considered in or covered by the Act.
If you would like to discuss your matter further, please contact Rockliffs Solicitors to make an appointment with one of our solicitors at a mutually convenient time.
For further information or assistance please contact Rockliffs on 02 9299 4912 or email us at email@example.com