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The breakdown of a De Facto Relationship, both heterosexual and same sex, is now dealt with by the Family Court of Australia and not the state courts as was previously done, in the same way in which the breakdown of a marriage is dealt with, providing that you and your partner separated after 1 March 2009.

This does not apply to de facto couples whose relationship has broken down before 1 March 2009 unless both parties opt into the new de facto laws. If the you and your partner do not opt into the new laws, your property matter will still be dealt with under the old state legislation and if contested dealt with in either the District or Supreme Courts.

In some states for example, in New South Wales, there is a significant difference between the property and maintenance rights currently provided under State Legislation to de facto couples and those now provided under the Family Law Act.

What is a de facto relationship?

For parties to be in a de facto relationship, they must have entered into a relationship of at least 2 years or there must be a child of the de facto relationship or one party must have made substantial contributions to the wellbeing and maintenance of the family and it must be decided by the court that a failure by it to make an Order or Declaration would result in a serious injustice to the Applicant.

A De Facto Relationship is defined as persons who are not legally married to each other, not related by family and having regard to all circumstances of their relationship having a relationship as a couple living together on a genuine domestic basis. When determining whether persons have a domestic relationship, the Court has regard to the duration of the relationship, the nature and extent of the common residence that is, their home, whether a sexual relationship exists, the degree of financial dependence or independence or any arrangements for financial support between the parties, the ownership use and acquisition of their property, the degree of mutual commitment to a life shared, whether the relationship was registered under the prescribed law of a state or territory, the care and support of children and the public recognition and reputation of that relationship.

The law envisages that a De Facto Relationship can exist even if one of the persons in that relationship is legally married to someone else or is in another De Facto Relationship.

Registration of the relationship

De Facto Relationships can now be registered, similar to a marriage and this will also be a clear indication that two parties are in a De Facto Relationship. The effect of the new legislation is that if the De Facto Relationship exists the registration of certain relationships that are not marriages may create legal rights and obligations that are very similar to marriages in particular, same sex couples who are able to and do register their relationship in the state or territory will virtually be in the same position as couples who marry in the event that their relationship breaks down and there needs to be an alteration of property or a consideration of maintenance to one of the parties.

A parent of a child in a same sex relationship which has broken down can also apply for Child Support from the other parent.

It is now the case that superannuation interests of a De Facto party may be split when dividing up the couple's property.

Financial Agreements

De facto Parties can also enter into Binding Financial Agreements commonly known as pre-nuptial agreements. Marriage would terminate any financial agreement which they might have and it is wise to enter into another agreement. You can enter into these agreements before co-habitation, during co-habitation and after the break down of your relationship. The agreements may be set aside if one of the parties to the agreement was not provided with independent legal advise from a legal practitioner before signing the agreement about the effect of the agreement and the rights of the parties and to the advantages and disadvantages at the time the advice was provided to the party making the agreement.

Limitation Period

In De Facto matters there is a limitation period in which you can bring proceedings. The law states that a Financial Application can only be brought in a De Facto matter if it is made within 2 years of the date of separation.

If you require our assistance with any aspect of your De facto relationship please do not hesitate to either Pamela Wood or Greg Miller both of whom specialise in family law and arrange a time that is convenient to you.



575 Kingsway

Miranda NSW 2228

Tel: (02) 9525 8100

Fax: (02) 9526 1182

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