De Facto Relationships In Family Law


The Family Law Act 1975 (Cth) (“the Family Law Act”) deals with a variety of matters including divorce, parenting and property settlement between parties who have separated. In March 2009 legislative amendments to the Family Law Act introduced guidance to assist in determining the eligibility of a de facto relationship. Following this, the Federal Circuit and Family Court of Australia was empowered with jurisdiction to deal with parties to a de facto relationship in matters where certain conditions are met as explained by Justice Murphey in the Full Court decision of Fenton v Marvel [2013] FamCAFC 132 set out below:

  • The de facto relationship broke down after 1 March 2009;
  • The de facto relationship was a genuine de facto relationship, as defined in section 4AA of the Family Law Act; and
  • The de facto relationship existed for at least 2 years.

What is a De Facto Relationship?

Section 4AA(1) of the Family Law Act states that a person is considered to be in a de facto relationship with another person if:

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

How does the Court Determine a De Facto Relationship?

In order to determine if persons have a relationship as a couple to constitute a de facto relationship, the Court takes into account a variety of circumstances which may include any or all of the following:

  • 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;
  • The ownership, use or acquisition of their property;
  • The degree of mutual commitment to a shared life;
  • Whether the relationship was registered
  • The care and support of children; and
  • The reputation and public aspects of the relationship.

De Facto Relationships and Claims for a Property Settlement

In the event the de facto relationship is established, according to section 90SB of the Family Law Act, the Federal Circuit and Family Court of Australia can make property settlement orders, similarly to parties of a marriage. In order to be eligible, you must satisfy the following:

  • You were in a genuine de facto relationship which has broken down;
  • You meet one of the following four criteria:
    • That the period of the de facto relationship was at least two years;
    • That there is a child to the de facto relationship;
    • That the relationship is or was registered; or
    • That the failure to issue an order would result in serious misjustice.

Once the above criteria has been satisfied, parties of a de facto relationship can divide their assets, liabilities and superannuation using similar procedures that apply to married couples. To make a claim post separation, a party to a de facto relationship has a two-year limitation period from the date of the relationship breakdown to initiate proceedings with the Federal Circuit and Family Court of Australia. For further legal advice in relation to your defacto relationship, contact our team today for an initial consultation.

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