17 March 2022, By Emily Woodhouse of Hartley of Family Law
A common question asked by clients is, “is there / was there a de facto relationship between my partner and I?” There is often a lot of confusion because the answer, is not always a straightforward one.
According to the Family Law Act 1975 (the Act), two people are in a de facto relationship if they are not legally married or related by family and they are a couple that lives together on a genuine domestic basis.
This applies to both heterosexual couples and same sex couples. A de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
To work out whether a de facto relationship exists between a couple (e.g. living together on a genuine domestic basis), one would need to consider a range of factors being:-
- How long have the parties been in a relationship;
- Do the parties share common residence (and if so, do they live together as a couple, rather than say, as housemates);
- Are the parties sexually intimate;
- Do the parties share their finances or depend on each other financially (e.g. joint ownership of property and personal property, joint bank accounts or payment of joint bills / rent / mortgage repayments);
- Do the parties share their lives and commitments (e.g. spending regular time together in social settings, social media posts together, sharing meals);
- Is there a mutual commitment to the care and support of children (if there are children of the parties, the shared care and financial support of the children including family days out and transporting the children to school and extracurricular activities);
- How to the parties present themselves to their family, friends and acquaintances (e.g. attending functions together, joint invitations and the use of pet names for each other); and
- Is the relationship formally registered (also known as a civil partnership).
It is important to note that the above is not a “tick a box” list. In other words, not all of the conditions need to be met for there to be a finding of a de facto relationship. The nature and extent of each condition is always considered.
My ex and I have separated, can I make a claim for a Property Settlement?
Once it has been established that a de facto relationship existed, there may be a claim to property settlement by the separated parties.
The Act however requires that the de facto relationship must have been of at least 2 years in duration for the Court to make a property settlement; unless there are factors which would make it unjust/unfair. For example, if the parties have a child / children together or if there has been significant contributions made by one or both parties.
When do I need to seek for a Property Settlement?
As soon as de facto parties separate, they can commence the property settlement process. However, there is a time limit of 2 years from the date that they separate to resolve those matters or otherwise, to start Court proceedings (to ask the Judge to make a decision for the parties). It is very important that parties make a note of the time limit.
If you need assistance to determine the existence of a de facto relationship or whether you would be entitled to a property settlement following the breakdown of your de facto relationship, please do not hesitate to contact one of our experienced family lawyers here at Hartley Family Law.