In November 2008 the Family Law Amendment Act came into existence, which meant that a couple in a de-facto relationship would their relationship recognised under the Family Law Act.
In other words, if you are in a de-facto relationship you have the same legal rights and obligations as those who are married when going through a separation and dividing property. This applies to both heterosexual and same-sex relationships throughout Australia.
How do you know if you are in a de-facto relationship for the purposes of the Family Law Act if going through a separation?
The Family Law Act provides some guidelines as to how to determine if a de-facto relationship exists or not. You may be in a de-facto relationship if your circumstances include one or all of the following:
- The length of the parties relationship;
- If the parties live together under the same roof;
- The degree of financial dependence or independence between them;
- Whether a sexual relationship exists;
- If the parties have a 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;
- The ownership, use, and acquisition of their property;
- The care and support of children;
- The reputation and public aspects of the relationship.
How long do you have to be living together to be in a de facto relationship?
To be considered de facto the usual time frame is for parties to live together for two years or more. However as discussed below, there have been cases where a de facto relationship has been found between parties without the parties residing together. To be de facto there is no formal ceremony involved, simply that some or all of the criteria prescribed by the Family Law Act are met as above.
Can a de facto relationship exist if the parties are not living together?
This is a very interesting area of the law as the Family Court has recognised that parties to a relationship can be married to or living with someone else, and also be in a de facto relationship. Even if both parties have their own residence, and don’t spend every night together, it can still be found that parties are in a de facto relationship. It depends on the way that the parties conduct their lives. This can be very confusing when proceeding forward with relationships, as you may not be legally protected.
Every matter and circumstance is different, so it is important to seek legal advice if you are not sure where you stand.
Time Limitation Period To Be Aware Of
Importantly, parties in a de facto relationship need to be aware that, whilst there is no time limit on how soon after separation de facto parties can make an application for consent orders to divide property, it must be done before the expiration of two years of the date of separation. De facto parties are precluded from bringing an application, without the leave of the Court after this two year period. It can still be done after the two-year time limit, however, if one of the parties needs to litigate to seek a property settlement, there is the first hurdle of making an out of time application.
There are occasions that are can be difficult to establish the existence of a de-facto relationship. Upon commencement of residing with a partner or separating from a partner, you may want to seek legal advice as to where you stand regarding your financial position. There are measures that can be put in place to protect your position. If you require legal advice about your relationship, contact our office on the Gold Coast & Brisbane for a free consultation with one of our family law solicitors on (07) 5574 0971