The de facto laws in Australia for de facto property settlement and de facto separation are now mostly the same as for married couples.
The de facto laws in Australia are uniform and are contained in the following Acts:
- In Western Australia, the Family Court Act 1997 (WA).
- In the other States and Territories, the Family Law Act 1975 (Cth).
This Family Law Information Guide deals with de facto couples living in Western Australia.
The Family Court of Western Australia has had the power to deal with parties living in de facto relationships since 2002. Since that time, parties in a de facto relationship have had the same rights to have a property settlement and obtain spousal maintenance as married couples.
The parties have 24 months from the date of separation to apply for a financial settlement. However, it is highly recommended that the parties take proactive steps to resolve their financial matters in a prompt fashion. For a discussion about what constitutes separation we recommend that you read our information guide about divorce.
The definition of a de facto relationship has proved to be problematical. The Family Courts have commented that there are a wide variety of relationships in which people live. There have been comments to the effect that there is no such thing as a ‘normal’ de facto relationship.
A couple are living in a de facto relationship if they live together in a marriage-like relationship.
The following factors are indicators of whether or not a de facto relationship exists:
- the length of their relationship;
- whether they live together;
- the nature and extent of their common residence;
- whether there is, or has been, a sexual relationship;
- the degree of financial support and dependence;
- the ownership, use and acquisition of their property;
- the degree of mutual commitment to a shared life;
- whether they care for and support children; and
- the public reputation of their relationship.
It is immaterial that parties are of the same sex or that one or both of the parties are married.
To apply to the Family Court of Western Australia one the must parties must be residence in Western Australia and the parties resided in Western Australia for at least one-third of their relationship or there have substantial financial or non-financial contributions made in Western Australia by the applicant.
The Court may make an order in relation to a de facto relationship only if satisfied there has been a de facto relationship between the partners for at least 2 years or one of the following exceptions applies:
- there is a child of the de facto relationship who has not yet attained the age of 18 years and failure to make the order would result in serious injustice to the partner caring or responsible for the child; or
- the de facto partner who applies for the order made substantial financial and non-financial contributions and failure to make the order would result in serious injustice to the partner.
Each de facto property settlement case will turn on its own facts and merits. Therefore it is very important that parties obtain proper advice about their rights and entitlements from an experienced de facto separation lawyer. We recommend that you also read our information guides on Alternate Dispute Resolution. Beacon Family Law regular represents parties involved in a de facto separation and property settlement.