When Can I make a Claim for Property Settlement as a De Facto Partner?

18 July 2017

In Australia, the Family Law relating to De Facto partners is substantially the same as the law relating to people who are legally married.  The Family Law Act covers married people and de facto couples, including those in homosexual relationships.

For married people, the right to make a claim for property settlement arises as soon as you are married.  For de facto couples, usually, there is no right to make a claim for property settlement unless the de facto relationship has lasted for at least two years.  However, there are exceptions to this two year threshold: if the relationship has been registered under State or Territory legislation; if there is a child of the de facto relationship; or, if a party has made substantial contributions and it would result in serious injustice if a property settlement claim was not allowed. 

In some cases, there will be arguments as to whether there has, in fact, been a de facto relationship.  Unlike a marriage, de facto relationships do not have to be registered with a state authority.  So, there is often a dispute as to when a de facto relationship commenced, or even, if it existed at all!  Under the Family Law Act, a de facto relationship is defined as having a relationship as a couple on a genuine domestic basis.  In order to determine whether a de facto relationship existed, the Family Court must take into account the following factors stipulated in the Family Law Act:

  • the duration of the relationship
  • the nature and extent of the couple’s common residence
  • whether a sexual relationship existed
  • the degree of financial dependence or interdependence between the couple
  • the ownership, use and acquisition of property
  • the degree of mutual commitment to a shared life
  • the care and support of children
  • the reputation and public aspects of the relationship

Subject to exceptions, any claim for property settlement by a de facto must be made within two years of the relationship ending.  The exceptions are:

  • if hardship would be caused to the party or a child if leave were not granted; or
  • if, in the case of an application for an order for the maintenance of the party -the party's circumstances were, at the end of the standard two year period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.

Consult our lawyers at Melbourne Family Lawyers to obtain legal advice as to your rights and obligations concerning property settlement or maintenance.  Telephone us on +613 9670 9677 or use the Make an Enquiry button on this page.

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