So…what are we? Defining de facto relationships and whether you have a property claim

Don’t worry, you don’t really have to ask your partner that question if you don’t want to. However, many people don’t realise that their property and financial interests could change significantly if a relationship they are in breaks down, even if they aren’t married!

When do you become involved a de facto relationship?

When it comes to property and financial claims under the Family Law Act 1975 (Cth) (“the Act”) a relationship may be considered de-facto if:

1. The parties to the relationship aren’t married;
2. The parties to the relationship aren’t related by family; and
3. Having regard to the circumstances of the parties’ relationship, they live together on a genuine domestic basis. This is a key phrase.

Meaning of genuine domestic basis

The “circumstances” that the Act refers to may be considered, individually or collectively, when determining whether a de-facto relationship exists and how long it may have endured. These circumstances include:

1. Duration – the common law position is two (2) years.
2. Common residence(s) – Whether a couple physically lives together some or all days of the week, and other considerations such as if they’re both on the lease.
3. Sexual relationship – self-explanatory, I hope!
4. Finances – whether the couple keeps a separate or shared accounts, or whether one of them relies on the other for financial support.
5. Property – this is broadly defined under the Act meaning it could include not just real property, such as houses or apartments, but vehicles, furniture, personal effects and even company shares. How the property was acquired, maintained, and who uses it is also important.
6. Commitment – Whether there is a mutual recognition of a shared life together can be evident in how a couple runs a household together, and how they communicate and compromise with one another.
7. Register – Whether the relationship was formally registered in the relevant state in which the couple may live.
8. Children – The care and support of children from the relationship and/or from previous relationships.
9. Perception – How the couple presents to the public, including online, and with their friends and family.

Interestingly, the way the Act defines de facto relationships means that a person of a marriage can actually be in a de facto relationship with a separate third-party. For example, this may arise where;

• two parties have been married for a long time, separate, never formalise a divorce, and begin to become involved in other relationships.
• a couple maintains an open relationship or marriage and have other partners that they stay with part or all of the week.
• a party to a marriage has another (usually secret) partner who they financially support and maintain a residence with, staying with them regularly.

When do you make your property claim?

Parties have two years after the break-down of a de facto relationship to make a claim for property and financial settlement, commonly referred to as a “limitation period”. There may be exceptions, but applications made outside of the limitation require leave (in other words, “permission”) from the court to proceed.

Your next steps

Are you concerned about the future of your relationship and what might happen if you separate? Have you recently separated from your partner and are unsure whether you have a claim to a property/financial settlement? Speak to our Family Law team today and let us help you navigate these issues for your financial security and peace of mind.

 

*This article was prepared with the assistance of Alex Feng.