Following the 2008 amendments to the Family Law Act 1975, if you are in a de facto relationship and separated finally on or after 1 March 2009, the Family Law Act 1975 applies to your relationship.
A “de facto relationship” is defined in s4AA of the Family Law Act 1975 in summary, as a relationship between a couple (heterosexual or same sex) living together on a “genuine domestic basis” having regard to all the circumstances of their relationship.
There is a common misconception that in order to be in a de facto relationship you must have been living together for 2 years. In order for the Court to make an order altering property interests, an applicant may make a claim even if the 2 year time period is not satisfied, if one of the following exists:
- There is a child or children of the relationship; or
- The relationship was registered; or
- There were substantial contributions made by the other party; or
- That a failure to make an order would result in serious injustice.
The question whether you are in a de facto relationship will be determined on a case by case basis. The following factors will be considered:
- The duration of the relationship.
- The nature and extent of your common residence.
- Whether a sexual relationship exists.
- The degree of financial dependence or interdependence.
- The ownership, use and acquisition of property.
- The degree of mutual commitment to a shared life.
- Whether the relationship has been registered.
- The care and support of children.
- The reputation and public aspects of the relationship.
If you are living in a de facto relationship and separate from your partner then the provisions of the Family Law Act 1975 which are similar to the provisions for married couples,apply in determining a claim for property settlement or spouse party maintenance.