By Amy Davies, Associate & Alexandra Moles, Partner

Navigating a property settlement after a de facto relationship can be challenging. It’s important to understand what a de facto relationship is under Australian law to enliven the rights parties have to a property settlement and a just and equitable outcome.

What is a de facto relationship in Australia?

The Family Law Act 1975 (Cth) (“the Act”) defines a de facto relationship to be one where two people are not legally married to each other; not related by family; and 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 the existence of a de facto relationship, section 4AA of the Act notes the circumstances to consider when working out if two people have a relationship as a de facto couple as:

1. the duration of the relationship;
2. the nature and extent of their common residence;
3. whether a sexual relationship exists;
4. the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
5. the ownership, use and acquisition of their property;
6. the degree of mutual commitment to a shared life;
7. whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
8. the care and support of children;
9. the reputation and public aspects of the relationship.

Pursuing a property settlement

The Act permits the Court to make an order for a property settlement or maintenance in relation to a de facto relationship only if the Court is satisfied:

1. that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
2. that there is a child of the de facto relationship; or
3. that (i) a party made substantial contributions to the relationship or (ii) a failure to make the order would result in serious injustice to the applicant; or
4. that the relationship is or was registered under a prescribed law of a State or Territory.

An application can be made after complying with the Court’s pre-action procedures which include several steps including full and frank disclosure and attendance at mediation (unless an exemption applies). We recommend you speak to a lawyer to ensure you have complied with these steps prior to bringing an application.

It is important to note there can be some differences in the way property settlements and maintenance applications are dealt with in de facto relationships vs a marriage. It’s important to seek legal advice to understand how these differences may affect the outcome of a de facto property settlement.

Time limitations

An application for property settlement must be filed within two (2) years of the date that the relationship ends. This is different to marriages where parties have one year from the date of divorce (not separation) to bring an application for property settlement.

Property rights of a partner in a de facto relationship

The legislation is clear that the property rights of partners in a de facto relationship are not enlivened until ‘after the breakdown of a de facto relationship’, which differs from a marriage. In determining whether a de facto relationship has broken down, the Court will consider the following factors:

1. an intention to separate that was clearly identified (e.g. moving out);
2. whether a party’s conduct acting against the other party’s interests may demonstrate an intention to separate; and
3. physical separation, including involuntary separation (e.g. nursing home admission or moving to a live-in care facility due to illness, incapacity etc), but with the addition of other conduct supporting the imputation of an intention by one party to separate.

Speak to one of our family law experts about your de facto property settlement

If you’re seeking advice in relation to your family law matter, Mills Oakley Family Law Brisbane will be happy to assist. Please contact the team on (07) 3010 8021.