By Caitlin Elliott – Senior Associate
The rate at which people choose to live in a de facto relationship rather than getting married continues to increase.
If you were in a de facto relationship but have now separated, you may have a claim for property settlement against your former partner’s assets under the Family Law Act 1975 (Cth) (Act). That also works the other way around – your former partner may have a property settlement claim against your assets.
What is a de facto relationship?
A key question is, what is the definition of a de facto relationship under the Act? You may have been in a relationship, but if it was not a de facto relationship, there is no claim for division of assets under the Act.
Section 4AA of the Act provides that a person is in a de facto relationship with another person if:
- They are not legally married to each other; and
- They 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. Those circumstances may include any or all of the following:
- The duration of the relationship.
- The nature and extent of their common residence (ie. are they living together).
- Whether a sexual relationship exists.
- The degree of financial dependence or interdependence and any arrangements for financial support between them.
- The ownership and use of their property and how the property was acquired.
- The degree of mutual commitment to a shared life.
- Whether the relationship is registered under State or Territory law.
- The care and support of children.
- The reputation and public aspects of the relationship.
Whether your relationship satisfies the meaning under the Act does not stand or fall on any one particular point.
It is often not clear cut if or when a relationship has evolved into a de facto relationship. Many relationships involve couples spending more and more time together. Regular and increasing time staying overnight at each other’s homes can indicate a move towards a de facto relationship. You may also be in a de facto relationship even though you live in separate houses.
Who can be in a de facto relationship? A de facto relationship can exist:
- Between two people of the same sex, or of different sexes. So, it applies equally to heterosexual and LGBTIQA+ couples.
- Even if one of the people is legally married to someone else or in a de facto relationship with someone else.
The Federal Circuit and Family Court of Australia has a wide discretion when determining whether a de facto relationship exists or existed.
My de facto relationship has ended – can I make a property settlement claim against my former partner’s assets?
If you were in a de facto relationship and have separated, you can make a property settlement claim if at least one of the below requirements is met:
- Your de facto relationship was for at least 2 years (either a continuous period, or periods that add up to 2 years in length); and/or
- There is a child of your relationship; and/or
- Your relationship is or was registered under State or Territory legislation; and/or
- One of you made significant contributions to the other’s property and the failure to make a property settlement order would result in a serious injustice.
There are certain geographical requirements. Most de facto couples meet those requirements.
Usually any claim for property settlement must be made within two years of the breakdown of your de facto relationship. In some cases the court will “grant leave” that is, give special permission, to make a claim out of time. We recommend you get legal advice early, as you cannot guarantee the court will give you permission to make a claim out of time.
Sometimes, couples who separate continue to live in the same house, at least for a while. That can be for practical reasons, as it may take someone a while to find other accommodation. You can be separated but still living in the same house, although it can make things less clear cut.
Recent High Court consideration of de facto relationship issue
The High Court of Australia recently considered the issue of whether a de facto relationship had broken down (that is, had a separation occurred). That was the case of Fairbairn & Radecki [2022] HCA 18.
During the relationship the parties kept their assets separate. As time went on, and the de facto wife had to go into residential care, the de facto husband’s actions indicated he no longer considered he was bound by their agreed arrangements. He began to exercise control over the de facto wife’s assets (including securing a new Enduring Power of Attorney), procuring a revised Will of the de facto wife favouring his financial interests and refusing to sell the de facto wife’s home. He also made little attempt to support the de facto wife financially and refused to cooperate with her children regarding her ongoing care. Generally, the de facto husband’s actions prioritised his interests over the de facto wife’s.
The Court found there had been a degree of mutual commitment to a shared life, but that commitment ceased when the de facto husband refused to make the “necessary or desirable adjustments” in support of the de facto wife and, by his conduct, acted contrary to her needs. On that basis the Court determined the de facto relationship had broken down.
Conclusion
Whether or not a de facto relationship exists is an important legal issue with significant effects on your legal rights. If you were in a de facto relationship:
- You may have a property settlement claim against your former partner’s assets and, likewise, you may be at risk of a property settlement claim by your former partner.
- You may also have a claim against your former partner for financial support (de facto spousal maintenance) or, they may have a claim for de facto spousal maintenance claim against you.
If your de facto relationship has broken down – or you are considering separating from your de facto partner – we recommend you get advice about your legal rights sooner rather than later. Please contact us on 03 8672 5222 to arrange an appointment with one of our family lawyers.
