De Facto Relationships
The Family Law Amended (De Facto Financial Matter and other Measures) Act 2008 provides that in cases where a de facto relationship ended after 1 March 2009, de facto financial matters are now dealt with by the Family Court and the Federal Magistrates Court in the same way as those involving married couples, including the ability to apply for spousal maintenance or superannuation splitting orders.
The Act enables de facto couples, when they separate, to obtain property settlements on the principles that apply under the Family Law Act to married couples. This involves the following:-
- The financial contributions made directly or indirectly by or on behalf of a party to the de facto relationship, to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them;
- The contributions (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them;
- The contributions made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship, including any contribution made in the capacity of homemaker or parent;
- The effect of any proposed order upon the earning capacity of either party to the de facto relationship;
- The matters referred to in subsection 90SF(3) of the Act so far as they are relevant, including but not limited to, the age and state of health of each of the parties to the de facto relationship, the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment etc.
- This is a change from the laws that applied before 1 March 2009. The legislation that previously applied to property settlement for de facto couples in NSW, was the Property (Relationships) Act 1984. This directed the Court to have regard to the parties' contributions to the relationship, including the financial contributions made directly or indirectly to the acquisition, conservation or improvement of any of the property of the parties. The Court is also required to have regard to other contributions including those of a homemaker or parent during the relationship. Notably there was no consideration for the future needs of either party.
The new laws enable the Family Law Courts to order a division of any property that the couple own, either separately or together with each other. Superannuation that each partner has can also be split (married couples have been able to split superannuation since 2002). Spousal maintenance can also be ordered.
Who is covered?
Only relationships breaking down after the commencement of the legislation, 1 March 2009, will be covered. If your de facto relationship broke down prior to 1 March 2009 you must act quickly as strict time limits apply.
The definition of a de facto relationship encompasses:
- Persons who are not legally married to each other;
- Persons who are not related by family;
- Having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
The new laws will apply to a de facto relationship if the Courts are satisfied of one of the following:-
- To determine the period (or total of the periods) of the de facto relationship is at least two years
- There is a child of the de facto relationship;
- One of the partners has made a substantial financial or non financial contribution (including as a homemaker or a parent) and serious injustice to that partner would result if the order was not made;
- The de facto relationship has been registered in a State or Territory with laws for the registration of relationships.
If persons have a de facto relationship, the following will be taken into account:-
- The duration of their 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 between them;
- The ownership, use or acquisition of their property;
- Their degree of mutual commitment to a shared life;
- Whether the relationship has been registered in a State or Territory with laws for the registration of relationships;
- The care and support of children;
- The reputation and public aspects of their relationship.
A de facto relationship can exist between two people of the opposite sex or between two people of the same sex. Conceivably a de facto relationship can exist if one of the persons is legally married to someone else or is in another de facto relationship.
The time limit to bring an application is two years after the end of the de facto relationship. The Court may grant the party leave to apply outside the two years period if the Applicant or a child would suffer hardship or if the Applicant is seeking maintenance and at the end of the two year period, he/she was reliant on an income tested government benefit.