Separation & De-Facto Relationships

The process of separation can be difficult, especially when you have children or complex assets together. Understanding the process and your position can help you deal with stress in this period of change.

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De facto and married couples have the same rights under the Family Law Act 1975. A relationship is deemed to be a de facto relationship under this legislation if the couple is not married or related and has lived together on a genuine domestic basis. De facto relationships can exist between parties of the same sex or the opposite sex.

For de facto couples, the time limit on commencing proceedings begins after the breakdown of the relationship. If you and your former partner disagree about when the relationship broke down, this can be determined by the court. The longer you wait, the more difficult it may become to prove that you are commencing proceedings within the time limit allowed.

There is no time limit for setting aside an existing property order, or for varying, reviving or setting aside an existing maintenance order. Parenting proceedings are not subject to any time limit, as long as the child is under eighteen years of age.

Am I in a de facto relationship?

A genuine domestic relationship is determined with consideration of the duration of the relationship, nature and extent of common residence during the relationship, existence of a sexual relationship, degree of financial dependence or interdependence, the ownership and existence of property of the parties, the degree of mutual commitment to a shared life, the registration of the relationship under State law, the care and support of any children, and the public perception of the relationship.

When can the Court determine my dispute?

For the Court to determine your financial dispute, you must be in a genuine domestic relationship, and have a geographical connection to a participating jurisdiction. You must also:

have been in a relationship for a period of at least two years (these can be separate and aggregating periods instead of one continuous period);
have a child of the de facto relationship;
have registered the relationship under a prescribed State law; or,
be in a situation where failing to recognise the significant contributions of one party would result in serious injustice.

There are time limitations on applying to the Court after the breakdown of your de facto relationship. You must apply within two years of the date of separation, unless you have the leave of the Court to apply outside of this period.

A geographical connection to a participating jurisdiction is determined with consideration of whether one or both of the parties was resident in a state or territory of Australia when the application to the Court was made, and that;

both parties were ordinarily resident in a state or territory of Australia during at least one third of the relationship;
one or both of the parties made substantial contributions in relation to the relationship in one or more state or territory of Australia; or,
The parties were ordinarily resident in a state or territory of Australia at the time of the breakdown of the relationship.

If the Court is satisfied that a de facto relationship exists (registered or otherwise), there is a child of the relationship, or that one or both parties made substantial contributions to the joint property pool that would lead to injustice if not adjusted, then you may be able to seek a property adjustment or other financial orders.

If you are in a registered de facto relationship, you can lodge an application to revoke this registration through Service NSW, or your state service.

Are you dealing with a de facto separation? Do you need advice around your interests and entitlements, or de-registering your relationship? Contact us here to find out how we can help you.

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