De facto Relationships and Property
The information in this section is specific to couples who are in (or have a relevant link to) New South Wales. If you are outside New South Wales you should seek the advice of an Accredited Specialist Family Lawyer in in your state or territory in respect of your circumstances.
Since 1 March 2009, The Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 brought significant changes to the way property is divided between de facto couples in New South Wales including same-sex relationships.
For couples who meet the qualifying criteria, their property division will be determined using the considerations established under the Family Law Act 1975 bringing them into line with married couples.
To qualify as a de facto couple under the Family Law Act 1975, there are a number of criteria which need to be satisfied:
- The parties must have a geographical link to one of the states or territories which have referred their powers to the Commonwealth (such as New South Wales)
- The relationship must be a genuine de facto relationship and not a merely dependent domestic relationship
- The parties’ relationship broke down after 1 March 2009.
The following are indicators which may confirm a genuine de facto relationship:
- Duration of the relationship
- Nature and extent of their common residence
- Existence of a sexual relationship
- Financial dependence or interdependence
- Ownership, use and acquisition of property
- Degree of mutual commitment to a shared lifestyle
- Whether the relationship is or was registered in a state or territory that has a relationship register
- Care and support of children
- Reputation and public aspects of the relationship
Finally, at least one of the following must apply:
- The period of the relationship is at least 2 years (in whole or in aggregate), or
- There is a child of the relationship, or
- A serious injustice would follow if an order were not made, or
- The relationship is registered; whilst registration is significant, it is not sufficient, by itself, to determine whether a de facto relationship exists.
Under the Family Law Act 1975, a relationship is treated much more as a socio-economic partnership. As time goes by, less weight is given to initial financial contributions made by each person (ie. who brought what property into the relationship).
Non-financial contributions such as being a homemaker and parent are also relevant in determining a fair division of property. Superannuation can be divided and spousal maintenance may be ordered. This can be quite at odds with the intentions of many people entering into a de facto relationships intending “what I have is mine and what you have is yours”.
It is important to be aware once a de facto couple separates their property settlement needs to be finalised in a legally binding manner (such as through Consent Orders or a Binding Financial Agreement) or by filing an Application in the Family Law Courts for property adjustment Orders. Once the 2 year period has expired you cannot make an application for Consent Orders or if necessary, file an Application for property adjustment Orders without firstly seeking leave (or permission) from the Court to do so. There is no guarantee leave will be granted.
If you and your partner have separated or are contemplating separation you should seek the advice of an Accredited Specialist Family Lawyer in your state or territory.