Property maintenance after the end of a de facto relationship

Property maintenance after the end of a de facto relationship

Part VIIIAB of the Family Law Act 1975 (Cth) (the Act) outlines how financial matters are to be regulated between people in de facto relationships, including same sex couples, provided they have separated on or after 1 March 2009, or have chosen to opt-in and to be covered by Schedule 1, s 86A of the Family Law Act 2008,.

In order for an application to be made for property maintenance, generally speaking the application must be made within two years of the date of separation. However, the court may make an allowance for an application to be made after the time limit provided that it can be established that the applicant or a child will suffer hardship, and there was a reason for the delay.

Meaning of de facto relationship

Section 4AA of the Act states that a person is in a de facto relationship if:

·         the parties are not legally married; and

·         are not related by family; and

·         taking into account all of the circumstances of the relationship, the parties have a relationship as a couple living together on a genuine domestic basis.

Determining if a de facto relationship exists

In trying to ascertain whether the parties are involved in a relationship as a couple, the circumstances that can be looked into can include some of the following:

  • the length of the relationship;
  • the nature and extent of how long the parties have resided with one another;
  • the existence of a sexual relationship;
  • the degree of financial dependence or interdependence, as well as any arrangements for financial support between the parties;
  • ownership, and the use and acquisition of property;
  • the degree of mutual commitment to a shared life;
  • whether the relationship is or was registered under a prescribed State or Territory law and as a prescribed kind of relationship;
  • the care and support of children;
  • the reputation and public aspects of the relationship.

A de facto relationship may also arise between two people of the same sex, or if one person is legally married to another person, or the person is in another de facto relationship.

Applying for orders or declarations for de facto relationships

Section 90SB of the Act sets out when a court can make an order or declaration in relation to a de facto relationship if it is satisfied:

·         the total period of the de facto relationship is at least two years; or

·         there is a child of the de facto relationship; or

·         that one party has made a substantial contribution to the de facto relationship and a failure to make the order or declaration would result in a serious injustice; or

·         the relationship is or was registered under a prescribed State or Territory law.

Additionally, s 90SK of the Act sets out the geographical requirements to be met in order for a declaration or an order to be made, and the court must be satisfied:

  • that either or both of the parties to the de facto relationship had ordinarily resided in the participating jurisdiction when the application for the declaration or order was made, and
  • either;
    • both parties to the de facto relationship resided in the relevant jurisdiction for at least a third of the de facto relationship; or
    • the party applying for the declaration or order made substantial contributions in relation to the family or property in the relevant jurisdiction.