The meaning of de facto relationship is defined by Section 4AA(1) of the Family Law Act 1975 (“the Act”) as one where the parties are not legally married to each other, are not related by family, and are in a relationship as a couple living together on a genuine domestic basis.
Section 4AA(2) of the Act lists a number of factors applied by the court to work out if people have a relationship as a couple. They include consideration of the following:
- How long the parties have been in a relationship;
- Whether they share a home;
- Whether they are sexually intimate;
- How financially intermingled they are and the degree of financial dependence and support;
- Whether they own property together;
- Whether there are children of the relationship and the care and support arrangements of the said children;
- Whether the relationship is one that is registered;
- Whether they publicly represent as a couple
In South Australia, you can register your relationship at Births, Deaths and Marriages using this link https://www.sa.gov.au/topics/family-and-community/births-deaths-and-marriages/marriages-and-relationships/register
De facto property settlement
Most parties do not think about the circumstances and definition of their de facto relationship until they have separated and are considering property settlement or issuing proceedings in the Federal Circuit and Family Court of Australia for an adjustment of property.
De facto parties can apply to the court for an alteration of property interests pursuant to Section 90SM of the Act. If the court is satisfied that it is just and equitable to make an order under this section, then the court must take into account the financial and non-financial contributions made by the parties during the relationship, as well as the contributions made to the welfare of the family including contributions as homemaker and parent, and then adjust the property between the parties as appropriate.
What parties don’t often realise is that the court can only make an order for an adjustment of property under Section 90SM if, and only if, the court is satisfied, pursuant to Section 90SB, that:
- The period of the relationship is at least two years;
- There is a child of the relationship;
- The party who applies has made substantial contributions of a financial, non-financial or parent/homemaker kind such that a failure to make the order would result in a serious injustice to the party applying for orders; or
- The relationship is or was registered under state law.
You can be together for less than two years, and still be regarded as being in a de facto relationship however, if you do not have children, you have not made significant contributions as required by section 90SM, and your relationship is not registered in your state, then you may be precluded from seeking orders for an adjustment of property.
The court can make a declaration pursuant to Section 90RD of the Act as to whether the de facto relationship existed, or never existed. The court can also make a declaration on any or all of the following:
- The length of the relationship;
- Whether there is a child of the relationship;
- Whether one party made substantial contributions;
- When the relationship ended;
- Where the parties lived during the relationship.
The most common myth is that a de facto relationship only exists after the parties have been in a relationship for two years and thereafter all property is divided 50:50. In fact, the court can make a declaration that you were in a de facto relationship albeit for less than two years. If the court finds that a de facto relationship existed, then section 90SM of the Act is enlivened and enables the court to alter property interests, but only if, you successfully satisfy one of the criteria in 90SB.
It is important to be aware that The Family Law Act 1975 imposes a limitation period for parties seeking orders for property division following the breakdown of a de facto relationship. The limitation period is two (2) years from the date the relationship ended. There is no limitation period for seeking parenting orders in relation to your children’s care arrangements.
If you are in a de facto relationship and considering or going through separation, it is important to seek advice about your potential entitlements, particularly if you have made significant contributions to property or the family but have been in a relationship for a duration of less than two years.
Our expert team of de facto relationship lawyers in Adelaide can guide you through the process of separation and property settlement.