Friday 12 October 2018

Introduction


Separating de facto couples (including same-sex couples) may be able to access, as married couples can, the Family Court of Australia and certain other courts which can order:

  • a division of any property that the couple own, either separately or together, with each other
  • the splitting of superannuation interests of either partner, and
  • the payment of spouse maintenance.

De facto couples may also be able to make binding financial agreements in the same way as married couples. As with married couples, to the extent that a valid binding financial agreement exists which deals with maintenance or property matters, the courts are prevented from making orders in relation to those matters where a de facto relationship has broken down.

Access to the federal family law regime depends on a number of factors (explained below), including geographical requirements. Couples in Western Australia may be subject to different treatment from those in other States and Territories.

Who can access the federal family law regime?

Broadly, a de facto couple can access the Family Law Courts in relation to maintenance or property orders upon the breakdown of their relationship where:

  • the relationship met the definition of a de facto relationship (see below)
  • at least one of the following four criteria are met:
    • the period, or the total of the periods, of the relationship are at least two years
    • there is a child of the de facto relationship
    • the applicant for the order has made substantial contributions in relation to property of either party or to the welfare of the family constituted by the de facto relationship (and any children of the relationship) and a failure to make the order would result in serious injustice to the applicant
    • the relationship is or was registered under a prescribed law of a State or Territory
  • the relationship has a geographical connection with a State that has referred power to the Commonwealth to deal with financial matters arising out of the breakdown of a relationship or with a Territory (see below)
  • the breakdown occurred after 1 March 2009 (or 1 July 2010 for couples with a geographical connection to South Australia).

In addition to the above requirements, there is a general requirement that the application for a court order must be made within two years of the end of the de facto relationship (although this period can be extended in limited circumstances).

The ability for a de facto couple to make a binding financial agreement under the federal regime requires that the couple are ordinarily resident in a State that has referred the required power to the Commonwealth or in a Territory when they make the agreement. Similar to a married couple, a de facto couple may make such an agreement either before, during or after the breakdown of the relationship.

What is a de facto relationship?

For the purposes of the regime, a person is in a de facto relationship with another person if:

  • the persons are not legally married to each other
  • 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.

The definition encompasses both opposite-sex and same-sex de facto relationships.

The circumstances that may indicate that a de facto relationship exists include the following:

  • the duration of the relationship
  • the nature and extent of 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 property
  • the degree of mutual commitment to a shared life
  • whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship (see Fast Facts: Meaning of spouse for super and tax purposes)
  • the care and support of children, and
  • the reputation and public aspects of the relationship.

No particular finding in relation to any of these circumstances is necessary in determining whether or not a de facto relationship exists. The court is entitled to attach such weight to any particular matter as is appropriate in the circumstances of an individual case.

While registration of a relationship provides conclusive proof that a person is another person’s de facto partner for a wide range of purposes including for the purpose of superannuation and tax law (see Fast Facts: Meaning of spouse for super and tax purposes), this is not the case under family law.

This means that additional circumstances such as those referred to above need to exist in order for there to be a conclusion that the parties were in a de facto relationship.

Geographical requirements

The de facto family law regime relies on the referral of power by the States to the Commonwealth to deal with financial matters arising out of the breakdown of a de facto relationship. There is no need for a referral of power by the Territories for the regime to apply because the Constitution already provides power for the Commonwealth to make laws for the Territories.

To access the regime, the relationship must have a geographical connection with a State that has referred such power or with a Territory.

All States except Western Australia have referred power to the Commonwealth.

De facto couples whose relationship has a geographical connection with Western Australia and not any other State or Territory of Australia cannot access the federal family law regime. These couples continue to be subject to the law in Western Australia (which has its own family court) and are therefore unable to split superannuation upon relationship breakdown. This is because Western Australia has referred only limited power (in relation to superannuation of de facto couples) and this power has not been implemented by the Commonwealth.

The geographical connection requirement can be satisfied in one of three ways:

  • if parties to the relationship were ordinarily resident in a referring State or a Territory during at least one-third of their de facto relationship
  • if the applicant for the order made substantial contributions to the acquisition, conservation or improvement of property, or substantial contributions in the role of homemaker and parent in a referring State or a Territory, or
  • if the parties to the de facto relationship were ordinarily resident in a referring State or a Territory when the relationship broke down.

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