What Determines A De Facto Relationship?

by resconflict on April 25, 2018

What Determines A De Facto Relationship?The Family Court determine the presence of a de facto relationship in accordance to the Family Law Act 1975. “The law requires that you and your former partner, who may be of the same or opposite sex, had a relationship as a couple living together on a genuine domestic basis. However, your relationship is not a de facto relationship if you were legally married to one another or if you are related by family.”[1]

If there is a break down in a de facto relationship, each party of the relationship has the same rights and obligations as divorced couples, in relation to the division of property and parenting issues.

How does the court determine a de facto relationship?

The court will determine the legitimacy of a de facto relationship through whether the couple were living in a genuine, domestic relationship, the Court takes into account several matters, such as:

  • 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 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.

Within two years of the breakdown of a de facto relationship you can apply for a financial order, however after two years has lapsed you will need the Court’s permission to apply.

The Family Court Of Australia states that “Before the Court can determine your financial dispute, you must satisfy the Court of all of the following:

  1. you were in a genuine de facto relationship with your former partner which has broken down
  2. you meet one of the following four gateway criteria
    1. That the period for the de facto relationship is at least 2 years
    2. That there is a child in the de facto relationship
    3. That the relationship is or was registered under a prescribed law of a State or Territory
    4. When assessing property or custodial claims in cases of a breakdown of a relationship, it is recognised that significant contributions were being made by one party and the failure to issue an order would result in a serious injustice
  3. you have a geographical connection to a participating jurisdiction
  4. your relationship broke down after 1 March 2009 (or after 1 July 2010 if you have a geographical connection to South Australia only); although you may be able to apply to the courts if your relationship broke down prior to the date applicable to your state.

You should obtain legal advice about whether your circumstances satisfy the criteria before filing an application.”[2]

Note: This is general information advice only and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters, please contact us on 03 9620 0088 or email info@resolveconflict.com.au

 

 

[1] Family Law Matters 2016, ‘De facto Relationships’, Family Court Of Australia, viewed 24 April 2018, http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/family-law-matters/separation-and-divorce/defacto-relationships/

[2] Family Law Matters 2016, ‘De facto Relationships’, Family Court Of Australia, viewed 24 April 2018, http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/family-law-matters/separation-and-divorce/defacto-relationships/

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