DEFACTO

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Defacto relationships have been accorded ever greater equivalence within family law.

DE FACTO AND PERSONAL RELATIONSHIPS CLAIMS
AFTER 1 MARCH 2009

Separating de facto couples (separation after 1 March 2009 and includes same sex couples) are now treated under the Family Law Act 1975 in respect of their division of property and the payment of spouse maintenance. Children have been under the jurisdiction science 1988.

Applications need to be brought within two years of the breakdown. Courts will have regard to some of the following features of the relationship: duration; common residence; sexual relationship; financial dependence; financial support arrangements; joint property; and a mutual commitment to shared life.

HISTORY

The District Court or Supreme Court resolve and deal with matters pertaining to the real and personal property of the partners in a de facto relationship following separation in accordance with the provisions of the Property (Relationships) Act 1984. The Family Court determine matters about children of a de facto relationship.

An application can be made within two years from the date of separation. A de facto relationship will be recognised IF you live together in a de facto relationship including same-sex relationships as partners in a domestic situation for a relevant period; or you have a close personal relationship between two adult persons and either of you provides support and care that is not for fee or reward.

In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case: the duration of the relationship, the nature and extent of common residence, whether or not a sexual relationship exists, the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties, the ownership, use and acquisition of property, the degree of mutual commitment to a shared life, the care and support of children, the performance of household duties, the reputation and public aspects of the relationship.

The Property Relationships Act 1984 (former De Facto Relationships Act) assigns rights to de facto partners and people in close personal relationships. The rights are like those of a married couple regarding property settlements, notwithstanding whose name the property is in. Normally it is necessary to show that you have resided together for at least two years. For relationships of a shorter duration you may claim if; you have child; or you care for a child and an injustice would result without a property order; or you made substantial financial or personal contributions and you have not been justly compensated.

Financial and non-financial contributions of each partner are taken into account. Time periods for making applications do apply: applications must be made to the Supreme Court, District Court or the Local Court within two years of the end of a relationship. The maximum you can claim in the Local Court is $60,000, unless the parties agree to the Local Court hearing a claim for a higher amount. The maximum you may be able to claim in the District Court is $750,000. Please refer to our legislation links below in respect of the property relationships and civil laws.

For maintenance orders you must show either that you cannot work because of the care of a child under 12 or the care of a physically or mentally handicapped child under 16, or that you have lost your earning capacity. A carer of a child is entitled to child support under the Child Support (Assessment) Act from the other parent of the child irrespective of marriage. The Family Law Act deals with children’s matters irrespective of whether or not the parents were ever married. The best interests of the child will be the most important consideration for the Court. See our section under Children.

De facto partners have the same rights to social security benefits as legally married partners. If you have separated from your partner and have dependent children, you may qualify for a Commonwealth benefit. You may be eligible for other benefits in the event of your partner’s death.