Couples often mistakenly assume that because they have been in a relationship with one another for a period of time, they are automatically classified as being “de facto”. This is not the case for the purposes of Family Law proceedings and the parties’ ability to seek a property division from the Court.
The Family Law Act 1975 provides that a person is in a “de facto relationship” with another person if:
1. The parties are not legally married to each other; and
2. The parties are not related by family; and
3. Having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
In determining whether the parties “have a relationship as a couple”, the Court will consider a number of factors, including but not limited to:
1. The length of the relationship;
2. Whether the parties live together and the extent of that shared living arrangement, including whether a sexual relationship exists between the parties;
3. The degree of financial dependence or interdependence between the parties and the ownership of any joint property;
4. The degree of mutual commitment to a shared life and how their relationship is perceived by others; and
5. The care and support of any children that the parties may have together or from other relationships.
Notably, the above definitions / factors do not make reference to any “two year” minimum relationship time period. However, the Court only has jurisdiction to hear an application for property settlement in a de facto relationship if:
1. The relationship lasted for more than 2 years; or
2. There is a child of the de facto relationship; or
3. The party making the application made substantial contributions to the relationship and a failure to make an order would result in a serious injustice to that party; or
4. The relationship was registered under law.
If it is established that the parties were in a de facto relationship and the Court has jurisdiction to hear an application for property settlement, such application must be made within two years from the date of final separation. Parties may be separated but still live in the same house – this is referred to as “separation under the one roof”, and the date of separation can be a date when the parties remain separated under the one roof.