When Can a De Facto Partner Apply for a Property Settlement in Australia?

Property settlements following the breakdown of a de facto relationship are governed by Part VIIIAB of the Family Law Act 1975 (Cth).

Jurisdictional Requirements

It is important to first determine whether the circumstances of the de facto relationship satisfy the jurisdictional requirements under the Family Law Act. The Family Law Act sets out the criteria that a court must be satisfied of before making an order. These criteria are as follows:

• The period, or the total of the periods, of the de facto relationship is at least two years (notably, the Full Court has held that an aggregated period of two years can satisfy this provision); or
• There is a child of the de facto relationship; or
• The applicant made substantial contributions, and a failure to make an order or declaration would result in serious injustice to the applicant; or
• The relationship was registered under state or territory law.

What is a De Facto Relationship?

This raises the question: how do you know if you were in a genuine de facto relationship?

The Family Law Act provides that a person is in a de facto relationship with another person if:

• The persons are not legally married to each other; and
• The persons are 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.

How Do You Know if Your Relationship Meets the Definition?

A further question arises as to how a court determines whether there was a relationship as a couple living together on a genuine domestic basis. The Family Law Act provides a non-exhaustive list of factors, including:

• The duration of the relationship;
• The nature and extent of their common residence;
• Whether a sexual relationship exists;
• The degree of financial dependence or interdependence, and any arrangements for financial support;
• The ownership, use, and acquisition of their property;
• The degree of mutual commitment to a shared life;
• Whether the relationship is or was registered under state or territory law;
• The care and support of children;
• The reputation and public aspects of the relationship.

What if One of the Criteria Was Not a Feature of My Relationship?

Importantly, no particular finding in relation to any one circumstance is determinative of whether a relationship was a de facto relationship for the purposes of a property settlement under the Family Law Act.

Time Limitation

Another important factor is the limitation period. Generally, an application must be made to the Federal Circuit and Family Court of Australia within two years of separation.

It is apparent that assessing whether the circumstances of a de facto relationship meet the necessary requirements for a property adjustment under the Family Law Act is not always straightforward. Early legal advice can assist in identifying the factual circumstances relevant to your relationship.