The word “de facto” means that although not intended, legal or accepted, something exists in fact. In other words, in the case of a de facto relationship it means that although parties are not married or the relationship is not registered, the parties are “spouses” in fact as a consequence of circumstances of their relationship. Section 4AA of the Family Law Act directs the Family Court to consider various factors in deciding whether a de facto relationship exists which includes:
- Whether the parties have lived together for two years or longer;
- Whether a sexual relationship existed;
- Whether there are children of the relationship;
- The nature and extent of any shared residence;
- The degree of financial dependence and interdependence between the parties;
- The degree of mutual commitment toward a shared life;
- The reputation and public aspects of the relationship; and/or
- Acquisition, ownership and use of property.
Until the Court decides that a de facto relationship exists, the Family Court does not have jurisdiction to determine issues between the parties. In other words, more often than not, the Court has to decide this preliminary issue before any other.
All of the above factors vary from case to case and each case turns on its own facts.
The Court has decided that a person can have more than one relationship and/or de facto relationship at any one time, and none of the above factors are more important than any other.
Once the Court has decided that a de facto relationship exists, a de facto party can make a claim to property and/or spousal maintenance as would any other person in a marital situation.
The claiming de facto party still needs to provide evidence to prove that they made contributions and that they otherwise would have future needs sufficient to make a claim for an adjustment of property which the Court would determine is just and equitable. Just because the Court has jurisdiction does not guarantee that there is a successful claim for a property settlement or for spousal maintenance.
Unlike married couples who have 12 months from the date of divorce to bring an application for property settlement or spousal maintenance, a de facto party has two years from the date the relationship broke down within which to commence Court proceedings seeking an adjustment of property and/or spousal maintenance. Accordingly, it is imperative that legal advice be sought and obtained without delay.
Pearsons Lawyers
This is general advice only. Pearsons Lawyers have a team of specialist family lawyers who can provide timely and accurate advice on all matters that need to be dealt with following a separation including parenting and property matters. To arrange your free initial consultation contact Pearsons Lawyers today on 1300 699 688 and “know where you stand”.
