Defacto Relationships & Property Settlement

A de facto relationship, under the Family Law Act 1975 (Cth), occurs where two people – of any gender – are living together on a genuine domestic basis and are not married or related by family. The parties are also required to have a mutual intention of sharing a…

A de facto relationship, under the Family Law Act 1975 (Cth), occurs where two people – of any gender – are living together on a genuine domestic basis and are not married or related by family. The parties are also required to have a mutual intention of sharing a life together. To determine a “genuine domestic basis” the Federal Circuit and Family Court of Australia (“the Court”) can attribute weight to the following aspects:

  • Length, public perception and reputation of the relationship;
  • Extent of a common residence and financial dependence or interdependence;
  • The degree and frequency of intimacy;
  • If the relationship is or was registered;
  • The ownership and use of property between the parties; and
  • The care and support of any children (if relevant).

The Court has unfettered discretion in some circumstances to make a declaration about a de facto relationship having been in existence or not. This will be particularly necessary where one person attempts to undertake a Family Law financial agreement (also known as a property settlement) with another person where both parties do not agree there was a de facto relationship.

Financial agreements can be entered into before entering a de facto relationship, during a de facto relationship or after the breakdown of a de facto relationship. These agreements can also be entered into with one or more other people.

Financial agreements formalise how the property (both real and personal) and financial resources, including superannuation, of the parties are to be distributed as well as the (financial) maintenance of either one of the parties to the de facto relationship.

Time limitations in relation to de facto family law matters can vary depending on the type of matter/agreement. For a property settlement after the breakdown of a de facto relationship, the parties must have either:

  • Been in a de facto relationship for a period of two (2) years or more;
  • Share a child of the de facto relationship;
  • Registered the relationship; or
  • One party made significant contributions (financial or non-financial) to the property of the other and a serious injustice would result (to the party who made the significant contributions) if an order is not made.

A financial agreement can be made either by agreement between the parties, which can then be formalised by applying for consent orders from the Court, or via a Binding Financial Agreement (“BFA”). It is important to consider which option will work best in your specific situation and offer the most protection to your assets immediately and into the future.

For any financial agreement post de facto relationship the parties should first attempt to reach an agreement privately where it is safe and practical to do so. Failing that, the parties should, again where safe and practical to do so, attend mediation to see if an agreement can be reach with the assistance of an independent third-party mediator. Failing both of those either party could make an application to the Court for financial orders.

Rudall & Rudall Lawyers have an experienced team of lawyers in Gawler, Tanunda and Adelaide to assist you. Please Call us on 8523 8400 (Gawler) 8523 8444 (Tanunda) or 8211 6500 (Adelaide) to arrange an obligation free first appointment, or alternatively send an email to legal@rudalls.com.au and we will contact you.