In March 2009 a new day dawned for de facto relationships – provided the couple separated after 1 March 2009, they were entitled to have their claim for a property settlement and spousal maintenance determined in the Family Court alongside married couples.

Despite not sealing their relationship with a ring, a couple (heterosexual or homosexual) who have lived together on a genuine domestic basis for at least 2 years (or less if they have a child, registered their relationship under the law of the State or one made a significant contribution to the property of the other or the welfare of the family unit) are considered to be a legal entity for the purpose of family law.

De facto spouses should not fear that they must walk away empty handed from a relationship. The Family Law Act makes special provision for the adjustment of property and financial support, in very much the same way as a married couple. For further information, please consult our pages regarding Property Settlement, Spousal Maintenance and Arrangements for Children.

The line as to what constitutes ‘living together on a genuine domestic basis’ can however be a sticking point which requires preliminary determination. Some of the factors the Court considers when deciding if there is a de facto relationship include:

  • The duration of relationship (i.e. at least 2 years);
  • The nature & extent of common residence;
  • Whether a sexual relationship exists;
  • The financial dependence & inter-dependence of the parties;
  • The ownership, use & acquisition of property;
  • The mutual commitment to a shared life;
  • Whether the relationship is registered (i.e. under the law of the State in which the parties reside/had resided during the relationship);
  • The care & support of children;
  • The reputation & public aspects of relationship.

Evidence needs to be gathered in relation to the common indicia of relationship (sexual activity, merging of funds, public perception etc).

As with marriages, there are time limits – any court application must be made within 2 years of the separation. Time is usually of the essence, and we encourage clients to consult us as soon as possible after a separation in order to best evaluate your claim.