De Facto v Married – Is there a difference in Family Law?

Introduction

Many people assume that a de facto and married relationship has the same effect in family law. With respect to parenting matters, this is true. In financial matters, this may not be the case.

 

Parenting: 

Provided there is a child of a relationship or marriage, the court has jurisdiction to hear the matter.

 

Financial/Property matters:

The court has jurisdiction to determine a financial matter where parties were married without having to satisfy any additional requirement. For de facto relationships however, to invoke the jurisdiction of the Family Law Act 1975 for a you are required to meet the definition of the de facto relationship pursuant to section 4AA of the Family Law Act 1975 (Cth) (“The Act”) You must be able to demonstrate satisfactorily that:

You were in a de facto relationship as defined by Section 4AA of the Family Law Act 1975 (Cth) (See below);

1. Your relationship broke down after 1 March 2009;
2. The length of the relationship exceeds two years[1]; or
3. You or the other party have made substantial contributions to the relationship and failure to finalise the property matter would result in a serious injustice to one party[2];
4. Geographical requirements are met. You must be either
   1. Living in a participating jurisdiction at the time of the application is filed and for at least a third of the relationship or that a party made substantial contributions; or
   2. That you were ordinarily resident in a participating jurisdiction at the time of separation[3]; and
5. That you have not entered into a designated State or Territory Financial Agreement in relation to your relationship.

 

What is a de facto relationship?

Section 4AA of the Family Law Act defines a de facto relationship as

• A relationship where the parties are not legally married;
• The parties are not related by family;
• They are a couple living together on a genuine domestic basis. In determining this aspect, the Court looks at factors such as
  • The length of the relationship;
  • Common residence;
  • Financial independence or interdependence;
  • Ownership, use and acquisition of their assets;
  • Mutual commitment to a shared life;
  • Whether the relationship was registered;
  • Care and support of children; and
  • Reputation and public aspects of their relationship.

 

Conclusion

In many de facto relationships, the jurisdictional requirement for property matters is made out but you should seek legal advice if you are unsure if you satisfy the criteria.

[1] Section 90SB(a) Family Law Act 1975 (Cth)

[2] Section 90SB(c) Family Law Act 1975 (Cth)

[3] pursuant to section 90SK with