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  • Were you in a de facto relationship?
  • Are you wondering if you have the same rights after separation as a married couple?
  • How long do de facto couples have to obtain a property settlement?

About De Facto Relationships In Western Australia

Do couples in a de facto relationship have the same rights as married couples after de facto separation?

The law in Western Australia provides that couples in a de facto relationship and same sex couples may be entitled to a de facto separation property settlement or spousal maintenance after de facto separation in the same way as married couples (with one exception).  You can also apply to the Family Court for parenting orders.

The exception is that, for couples in a de facto relationship, the Court cannot make orders splitting superannuation entitlements. 

As De Facto relationships are considered binding in the eyes of the law, it is very important to seek advice from experienced De Facto Lawyers to make sure you get the desired outcome from your separation.

The Court must first determine if you were actually in a de facto relationship.  There are many factors that can be taken into account, including:

  • The length of your relationship;
  • Whether you lived in the same house;
  • Whether you were financially dependent on each other;
  • The ownership, use and acquisition of property;
  • Your commitment to a shared life;
  • Whether you have cared for and supported children; and
  • The public nature of your relationship.

If you are unsure if your relationship is considered De Facto, our experienced team of De Facto Lawyers can help provide clarity & advice on your situation to make sure you are properly informed of your situation. 

FAQ:

Do I have any rights as an individual in a de-facto relationship? Yes, in Western Australia the Family Court Act 1997 (WA) gives legal rights to those in de facto relationships. This includes disputes regarding children, property settlements and financial maintenance.

The parties of the de facto relationship have 24 months from the date of separation to apply for a financial settlement.  However, it is highly recommended that the parties take proactive steps to resolve their financial matters in a swift fashion to sever all financial ties and have some stability moving forward without the rush of attempting to file documents just prior to the deadline.

Under the Family Court Act 1997 (WA), a person is considered to be in a de facto relationship if the couple are living together in a ‘marriage-like’ relationship yet are not legally married and are not related by family.

A slightly different definition of a de facto relationship applies in other jurisdictions in Australia.

The definition of a de facto relationship has however proven to be problematic, and the Family Courts have commented that there are a wide variety of relationships in which people live. 

The following factors are indicators of whether or not a de facto relationship exists:

  1. the length of their relationship;
  2. whether they live together;
  3. the nature and extent of their shared residence;
  4. whether there is, or has been, a sexual relationship;
  5. the degree of financial support and dependence;
  6. the ownership, use and acquisition of their property;
  7. the degree of mutual commitment to a shared life;
  8. whether they care for and support children; and
  9. the public reputation of their relationship.

If you are applying for property or maintenance orders after the breakdown of a de facto relationship in Western Australia, the Family Court can only make orders if the relationship meets certain requirements.

To prove the de facto relationship meets the legislative requirements, you need to file an affidavit dealing with the following matters when you make your application:

  1. Residence

One of the must parties must be residing in Western Australia on the day the application is made.

The parties must also have resided in Western Australia for at least one-third of their relationship or there have substantial financial or non-financial contributions made in Western Australia by the applicant.

  1. Length of relationship

The Court may make an order in relation to a de facto relationship only if satisfied there has been a de facto relationship between the partners for at least 2 year or one of the following exceptions applies:

  • there is a child of the de facto relationship who has not yet attained the age of 18 years and failure to make the order would result in serious injustice to the partner responsible for the child; or
  • the de facto partner who applies for the order made substantial financial or non-financial contributions and failure to make the order would result in serious injustice.
  1. If either party has a spouse

The affidavit must also advise whether either party has a spouse. If either party has a spouse, then the affidavit should indicate that a copy of your application will be served on that spouse.

The Family Court of Western Australia has had the power to deal with parties living in de facto relationships since 2002.  Since that time, parties in a de facto relationship can access the same range of remedies in the Family Court as those available to married couples.

The de facto laws in Australia for de facto property settlement and de facto separation are now mostly the same as for married couples, and are contained in the following Acts:

  1. In Western Australia, the Family Court Act 1997 (WA).
  2. In the other States and Territories, the Family Law Act1975 (Cth).

The only exception however is superannuation.

For married couples, superannuation can be included in the property pool and therefore divided and transferred from one party to the other. However, for de facto couples, superannuation is treated as a financial resource and is not able to be divided.

The website of the Family Court of Western Australia is very informative and is always a useful platform to obtain up to date and important information regarding not just de facto relationships, but family law information in general. See the following link for the de facto relationships page https://www.familycourt.wa.gov.au/D/defacto_relationships.aspx.

If you have further queries or want advice tailored to your specific circumstances, book an appointment with one of our family and de facto lawyers today.

A financial relationship exists whether you have been married or in a de facto relationship and this relationship will continue to exist until an order is made by the Family Court. 

You should commence any application for property settlement or spousal maintenance within two years of the date of your de facto separation. After this time, you will need permission from the Family Court to make a de facto separation property settlement.

 

Our experienced De Facto Lawyers can provide advice on all aspects of the law as it relates to couples in a de facto relationship and same-sex couples, including how to manage negotiations on property or child-related matters. 

Related articles:

 

If you require assistance in relation to de facto relationship, HHG Legal Group’s lawyers can provide advice to you and your business to minimise your future risk. Contact our Family Lawyers by emailing reception@hhg.com.au or calling us on (08) 9322 1966

*This is general information only, and does not constitute specific legal advice. Please consult one of our experienced Legal Team for specific advice relevant to your situation.

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