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defacto relationships


Contact Armstrong Legal:
Canberra: (02) 6288 1100
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448

Kerry White

The team at Armstrong Legal Canberra have an extensive understanding of the complex legal issues surrounding de facto relationships.

The law in the ACT regarding de facto relationships was changed in 2009.

As a result of this, de facto couples who separated before 1 March 2009 are covered under different laws to those who separated after 1 March 2009.

Couples who separated after 1 March 2009 are covered under the Family Law Act 1975.



What is the definition of a de facto relationship?

The law recognises de facto relationships as being relationships between two adult persons:

  • who are not legally married to each other; and
  • are not related by family; and
  • have a relationship as a couple living together on a genuine domestic basis.

In order for the court to make a property order for a de facto relationship, certain requirements need to be satisfied, including:

  • the requirement of being in a genuine de facto relationship
  • a geographical connection requirement
  • that the relationship broke down after 1 March 2009

Other criteria that can determine de facto status include:

  • length of relationship
  • co-habitation
  • distribution of household duties
  • financial interdependence
  • joint assets
  • the care and control of any children of the relationship;
  • whether friends and relatives see you as "de facto";
  • whether you intend the relationship to be permanent

Same sex relationships are recognised as de facto relationships.

De facto status is not achieved through any formal ceremony, but automatically applies when two people meet the criteria. Unlike marriage, de facto status is not entirely portable. Whilst it is recognised in most states of Australia (except South Australia), Canada and New Zealand, it is not recognised in the USA and many other countries.

What are my rights and responsibilities as a partner in a de facto relationship?

If you are in a de facto relationship, your legal rights and responsibilities are similar to those of married couples. For example, if your partner died, you would be entitled to the following:

  • a share of the intestate estate under the Wills Act 1968 (ACT)
  • receive compensation under workers compensation law (if your partner dies during the course of employment).
  • claim financial assistance under the Family Provision Act 1969 (ACT)
  • claim social security under the Commonwealth Social Security Act.

De facto relationships that ended prior to 1 March 2009

In a de facto relationship breakdown in the ACT, de facto couples who separated prior to 1 March 2009 are covered by the Domestic Relationships Act 1994 (ACT) for matters relating to property and spousal maintenance. Applications for property orders under this legislation must be made within 2 years of the end of the de facto relationship.

De facto relationships that ended after 1 March 2009

In a de facto relationship breakdown in the ACT, de facto couples who separated after 1 March 2009 are covered by the Family Law Act 1975 (Cth) for matters relating to property and spousal maintenance.

Property Settlement for de facto relationships in the ACT

There are multiple ways in which a property settlement can be reached for partners to a former de facto relationship in the ACT. Below are a range of the options available to our clients.

1. Financial agreements / domestic agreements

It is an option for de facto couples to elect to create a 'domestic relationship agreement' during the course of their de facto relationship. At the same time, a separation agreement can be created immediately after, or in advance of the breakdown of a de facto relationship.

Both these agreements require the signature of each of the parties and the provision of independent legal advice.

2. Reaching an agreement through consent orders

Reaching an outcome through mediation can be a positive decision for many former de facto partners. If it is possible for an agreement to be reached then an application for consent orders can be made and which the court will formalise. This agreement must be regarded as 'just and equitable' to both former de facto partners and both partners must have received legal advice.

3. An application for property orders

Making an application to the court

For situations where there has been no prior financial agreement, parties of a de facto relationship or a domestic relationship can apply for property orders.

De facto relationships that ended prior to 1 March 2009

Applications for property orders for de facto relationships that ended prior to 1 March 2009 are governed by the Domestic Relationships Act 1994 (ACT) and must be made within two years of the end of the de facto relationship. Applications for claims are made to the ACT Supreme Court or to the ACT Magistrates Court. The ACT Magistrates Court has jurisdiction to hear and decide cases if the amount claimed is less than $50 000.

De facto relationships that end after 1 March 2009

Applications for property orders for de facto relationships that end after 1 March 2009 are covered by the Family Law Act 1975 (Cth) and are heard in the Family Court or the Federal Magistrates Court.

The court hearing

Next the decision is then made through a court hearing. Both parties are expected to fully disclose their respective financial circumstances. A failure to make proper disclosure of a relevant matter is taken very seriously.

The court's four step approach:

The Court considers the following factors in a property settlement

1. What is the net asset pool of the partners to the de facto relationship?

The 'net asset pool'is the value of all the assets owned by the parties. This pool includes anything acquired during or before the relationship began, as well as after it broke down.

The Court will also consider the financial resources over which a former de facto partner has control, influence or future entitlement.

2. What are the financial and non-financial contributions from both parties?

The Court will consider the following:

  • the total financial contributions
  • all non-financial contributions
  • any gifts, bonuses or inheritance
  • all assets attained before marriage

3. What are the future needs of both parties?

Factors for consideration include:

  • their health
  • age
  • capacity to earn
  • their property and assets
  • new relationships
  • parenting responsibilities

4. What is the practical effect of the proposed settlement and will the arrangement be 'just and equitable' to both parties?

NOTE: superannuation is not included in a property settlement between former de facto partners. However, it may be taken into account with regard to the future needs of the parties.

Armstrong Legal Canberra can help you with your property settlement matter

At Armstrong Legal Canberra, we understand that reaching a property settlement be a difficult and stressful experience. Our expertise in de facto property settlement matters ensures that you will receive both personal and practical advice that is suited to your unique circumstances.

Our team of family lawyers, will be there to give you assistance whether you pursue a financial agreement, consent orders or if you choose to take your matter before the Family Court.

Spousal maintenance in the ACT

Spousal maintenance can be obtained as a matter of urgency under section 77 of the FLA.

Section 72 FLA : the right for de facto couples to spousal maintenance.

Section 90SF(3) FLA : details matters for the Court to consider in its' assessment.

De facto relationships that end after 1 March 2009

In the ACT spousal maintenance for de facto relationships that end after 1 March 2009 are governed by the Family Law Act 1975 (Cth).

The court must apply the principle that a party to a de facto relationship must either maintain the other party of the de facto relationship only to the extent that the first mentioned party is reasonably able to do so and only if the second mentioned party is unable to support himself or herself adequately. In determining whether the party claiming spousal maintenance is unable to support himself or herself adequately, the court will consider whether they:

  • have the care and control of a child of the de facto relationship under the age of 18 years
  • are unable to support themselves due to their age or physical or mental incapacity for appropriate gainful employment; and
  • are unable to support themselves for any other adequate reason.

Armstrong Legal Canberra is experienced in the issue of spousal maintenance, and can provide you with valuable assistance to achieve the best result in making your claim.

Children and de facto couples in the ACT

The Commonwealth Family Law Act covers all issues related to children to de facto relationships. These are processed through the Family Court and the Federal Magistrates Court.

Irrespective of whether parents assume new relationships, the Family Law Act squarely places parental responsibility on both parents.

Dispute resolution and de facto relationships

Dispute resolution and 'pre-action procedures' an important feature of Australian family law. Our family lawyers are experts in achieving time and cost effective out-of-court settlements for our clients.

Prior to an application for parenting orders, it is necessary for parties to utilise dispute resolution processes under the supervision of a family dispute resolution practitioner (Section 60I of the Family Law Act).

In cases where an adequate outcome cannot be reached, Armstrong Legal are prepared to assist you in your parenting matter before the Family Court.

Child support and de facto relationships

Armstrong Legal Canberra are experts in child support matters.

Our team can guide you through the creation of a 'private child support agreement' and help you to avoid the processes of the Child Support Agency.

Armstrong Legal Canberra can provide advice in applying for child support to the Child Support Agency and are highly experienced in the operation of the Child Support (Assessment) Act.

Geographical issues and de facto relationships

Section 90SK of the Family Law Act states that before an application for maintenance /property orders can filed, it must be shown that:

  • Either or both of the parties to the relationship were "habitually resident" in an Australian State or Territory besides South Australia or Western Australia when the order was made;
    And:
  • Either or both parties lived in a participating jurisdiction for at least a third of their time in the de facto partnership; or
  • The applying partner made "substantial" contributions to the de facto relationship; or
  • The parties to the de facto relationship were habitually resident in a participating State or Territory jurisdiction when the relationship ended.

Two year time limits on property matters

  • Applications for property / maintenance orders have to be made within 2years after the end of the relationship : Section 44(5) Family Law Act:

    The court may still have discretion to grant the party leave to apply after the end of the standard application period if satisfied that:

    • Hardship would occur to a party / child if leave were not to be granted; or
    • If maintenance is applied for, the party's circumstances were such that they would not have been able to support themselves with an income tested pension, allowance or benefit.

What are the effects of registering my de facto relationship?

The decision to register you de facto relationship can lead to the creation of substantial rights and obligations.

The certificate accompanying registration can be proof of the length of the relationship.

Registration can create a de facto relationship recognised at law regardless of whether the parties have lived together for two years.

where to next?

Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?

Why Choose Armstrong Legal?

Contact Armstrong Legal:
Canberra: (02) 6288 1100
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448

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