De facto property settlement
You may have wondered at some point, how does a de facto property settlement work?
A de facto relationship is the legal term for a serious ‘boyfriend’ or ‘girlfriend’. Under family law principles, a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex. Also, a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
What Is A De Facto Relationship?
The Family Law Act 1975 section 4AA says that two people are in a de facto relationship if the two people are not legally married to each other, not related by family and having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Under Australian law, a de facto relationship means a relationship where you are living together ‘on a genuine domestic basis’.
Both heterosexual and homosexual couples can be in a de facto relationship.
A Court can find a de facto relationship even when one of the parties is legally married to someone else or in another de facto relationship.
The Court will consider the circumstances of the relationship to determine whether the couple are living together on a genuine domestic basis.
According to s4AA of the Family Law Act, several factors must be taken into account, being:
- The duration of the relationship;
- The nature and extent of their common residence;
- Whether a sexual relationship exists;
- The degree of financial dependence or independence, and any arrangements for financial support, between them;
- The ownership, use and acquisition of their property;
- Their degree of mutual commitment to a shared life;
- Whether the relationship has been registered;
- The care and support of the children;
- The performance of household duties; and
- The reputation and public aspects of their relationship.
All of the factors carry equal weighting and must be considered when making a determination as to whether a couple is in a relationship are not.
The Court will consider the factors as a whole in order to determine whether a de facto relationship exists.
There are two specific elements of that definition which require individual consideration.
Are you a couple?
The first of those is the concept of “a couple”.
For the purposes of the definition, “a couple” is constituted by two people, whether of the same or opposite sexes.
Are you living together?
The second specific element is the concept of “living together”.
In the case of Moby & Schulter (2010), the judge found stated that if a couple does not live together at any time, they cannot be seen as being in a de facto relationship.
However, how do you define “living together”?
The judge went on to state that a couple was not required to live together on a full-time basis.
There would have to be an element of ‘living together’, however, you would have to analyse each relationship on a case-by-case basis without circumscribing any particular factor.
Cases like Moby & Schulter help us understand the court’s view when it comes to determining the existence of a de facto relationship.
Family law de facto property settlement
It is important to understand family law de facto property settlements as you will know what to do in the event you separate from your partner.
You could potentially seek a de facto property settlement from the Federal Circuit Court.
Alternatively, you could mediate an agreement between both of you about how your assets will be divided after separation.
This is a great way to save time and money.
You can then go to get independent legal advice from a family lawyer to make your agreement legally binding in the form of Consent Orders.
You may already have a binding financial agreement in place. That will mean your assets will be divided as per that agreement.
You can also make a Shared Parenting Plan, and as long as you follow the correct family law principles, this document could stand in court.
Can You Be Married And Have A De Facto Relationship?
In Jonah and White  FamCA 221 (4 April 2011) the Judge noted that one can be legally married and also in a de facto relationship meaning that you would still be open to a claim for de facto relationship property rights.
Things that help determine whether you are a de facto couple could be:
- the duration of the relationship;
- a common residence;
- a sexual relationship exists;
- the degree of financial dependence or interdependence;
- the ownership, use and acquisition of their property;
- the degree of mutual commitment to a shared life;
- whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
- the care and support of children;
- the reputation and public aspects of the relationship.
In Spencer & Speight  FamCA 436 a de facto relationship was found to exist when there had been no sexual intercourse. This case also shows that in some cases even if the de facto relationship has been less than 2 years the Court can find it appropriate to make orders for a property adjustment.r
Mr Spencer and Ms Speight gave different versions of events about if they had a sexual relationship. Mr Spencer alleged that they had a sexual relationship from June 2011 to June 2013. Ms Speight asserted sexual intercourse never occurred due to Mr Spencer’s “health difficulties. The
Mr Spencer alleged that they had a sexual relationship from June 2011 to June 2013.
Ms Speight alleged that they never had sex as a result of Mr Spencer’s health difficulties
The Court said that nevertheless, an “intimate relationship” existed as the parties shared the same bed for months and were affectionate towards one another.
“Intimate relationships between couples can be many and varied and do not need to include physical sexual intercourse to fall within the definition of a sexual relationship…each case will be determined on its own facts”.
The case of Hamblin & Dahl  FMCAfam 514 (24 May 2010) helps us understand the family law principles taken into consideration when determining the length of a de facto relationship.
Between March 1994 and December 1998, and then again between April 2008 and October 2009, the couple were in a de facto relationship.
They disagree how they should categorise their relationship for the in-between years, other than from May 2006 to April 2008 when they agree that the applicant was in a de facto relationship with another person.
A court may make an order…in relation to a de facto relationship only if the court is satisfied that the period, or the total of the periods, of the de facto relationship, is at least 2 years;…
The question to the court was, if the same people commence a de facto relationship in the future, is it a separate de facto relationship?
In this case, there was a ten-year gap between the relationships.
After looking at the factors of the relationship, the court ruled that they would hear the matter as the total length of the relationship exceeded 2 years.
Time limit on de facto property settlement
You must make an application for your de facto property settlement within 2 years of the end of a de facto relationship.
The court may grant ‘leave’ to apply out of time, however, this is an extra obstacle that you will have to overcome.
You will have to convince the court that hardship will be caused to either yourself or a child if the court didn’t grant you an extension.
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Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.