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De facto Property Matters

Since 1 March 2009 de facto property matters are to be determined by Part VIIIAB of the Family Law Act 1975. The laws now relating to de facto relationships are almost exactly the same as the laws which apply to marital relationships.

Accordingly, there is now a uniformed law relating to de facto relationship and the distribution of property following separation.

The new laws enable courts to order a division of any property that the couple own, either separately or together with each other.

The changes of greatest significance are:

  • Superannuation that each partner has will may now be split (married couples have been able to split superannuation since 2002);
  • It is now possible for a party to seek spouse maintenance which was not previously possible in Queensland;
  • Parties can now be living in several de facto relationships; and
  • The relationships can be one of dependence.

Courts will be able to make these orders if satisfied of one of the following:

  • The period (or the total of the periods) of the de facto relationship is at least 2 years;
  • There is a child of the de facto relationship;
  • One of the partners has made a substantial financial or non-financial contribution (including as a homemaker or parent) and serious injustice to that partner would result if the order was not made; or
  • The de facto relationship has been registered in a State or Territory with laws for the registration of relationships.

What is the definition of a de facto relationship?

A person is 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 .

For the purposes of the Family Law Act a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex. Further, a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

Accordingly, a de facto relationship is a relationship between two people who are not married but live together as a couple on a ‘genuine domestic basis’.

A de facto relationship can exist between 2 people of the opposite sex, or between 2 people of the same sex.

There are a number of circumstances of each relationship which will help determine whether a couple are living within a de facto relationship, namely:

  • The duration of their 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;
  • Their degree of mutual commitment to a shared life;
  • Whether the relationship has been registered, in a State or Territory with laws for the registration of relationships;
  • The care and support of children of the relationship; and
  • The reputation and public aspects of their relationship.

The new laws apply to de facto relationships that break down on a final basis after 1 March 2009.

If the de facto relationship ended prior to 1 March 2009 the law within the relevant State or territory will apply to the adjustment of de facto property.

However, if separation occurs prior to 1 March 2009, parties can make an election (after obtaining independent legal advice) to have their matter determined pursuant to the Family Law Act rather than under the relevant State or Territory law. However, both parties will need to make this election to this.

Do the laws apply in my State or Territory?

At this stage, the new laws apply to people who are ordinarily resident in New South Wales, Victoria, Queensland, Tasmania, the Australian Capital Territory, the Northern Territory or Norfolk Island at the time that their de facto relationship breaks down.

When can I apply?

Parties must apply to a court within 2 years of the end of the de facto relationship. In limited circumstances, a court may grant leave to make an application after the end of that period.

What if I don’t want to be covered by these laws?

It is possible for a couple to make it clear that they do not want these laws to apply to their relationship. Couples can make an agreement about how they will distribute their property and maintain each other if their relationship was to break down. These are called Binding Financial Agreements and can only be entered into after both parties have obtained independent legal advice.

Binding financial agreements can be made before entering into a relationship or during a relationship.

Written agreements that couples have made under current State or Territory law about property division or spouse maintenance in the event of the breakdown of their de facto relationship will continue to apply.

Like most changes to the laws relating to family and relationship laws, the new De Facto Property Regime contained within the Family Law Act has a major impact on de facto relationship following separation.

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