Since 1 March 2009, parties who were in a de facto relationship and are now separated may make an application to the Family Court or Federal Circuit Court seeking Orders for the alteration of property interests i.e. division of property.
Pursuant to section 4AA(1) of the Family Law Act 1975, a person is in a de facto relationship with another person (regardless of gender) if:
- They are not legally married to each other; and
- They are not related by family; and
- Having regard to all of the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
The circumstances that the Court may take into account (as referred to above) may include any or all of the following:
- The duration of the relationship – The relationship or total duration of the relationship was for at least two years (unless an exception applies). An exception to the two-year threshold is if there is a child of the relationship;
- The nature and extent of the common residence;
- Whether a sexual relationship exists;
- The degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;
- The ownership, use and acquisition of the parties’ property;
- The degree of mutual commitment to a shared life;
- Whether the relationship was registered;
- Care and support of children (if any);
- The reputation and public aspects of the relationship i.e. if the parties were acknowledged by friends and/or family as being a couple.
A de facto relationship may exist even if one person is, or if both people are, legally married to another person or are in another de facto relationship.
Time limit to apply to the Court for the division of property
The application must be made to the relevant Court within two years of the date of separation. This also includes the time that the parties are separated under-one-roof (if applicable).
If you would like to make an application outside of this time, you would need to first seek the leave of the Court i.e. ask for the Court’s permission to apply. The Court may or may not grant you leave depending your circumstances.
If you have not been granted leave by the Court to make the application, you and the other party may still enter into a Binding Financial Agreement for the division of property.
This article provides information that is general in nature and is not a substitute for legal advice.