Are you in a Defacto Relationship?

It has been over half a decade since the rights and obligations of defacto partners as to property settlement has been included alongside the rights and obligations of married couples in the Family Law Act.

A common question Freedom Law is asked is: will my relationship be classified as a defacto relationship so I can seek a property settlement under the Family Law Act?

Section 4AA defines the meaning of a de facto relationship for the purposes of the Family Law Act:

(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Paragraph (c) has effect subject to subsection (5).

(2) Working out if persons have a relationship as a couple, those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.

(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.

(4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

(5) For the purposes of this Act:
(a) a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

It is not unheard of for a court to be required to determine whether a defacto relationship existed and for how long, where one of the parties to the alleged defacto relationship disputes that it existed at all in order to avoid a family law property settlement.

To seek a property settlement under the Family Law Act, certain time limits apply as to the length of the relationship and as to the length of the separation. Please contact us at Freedom Law for further details.


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