What is a De Facto entitled to?
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.
What does it mean to be in a De Facto relationship?
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:
- the length of their relationship;
- whether they live together;
- the nature and extent of their shared residence;
- whether there is, or has been, a sexual relationship;
- the degree of financial support and dependence;
- the ownership, use and acquisition of their property;
- the degree of mutual commitment to a shared life;
- whether they care for and support children; and
- the public reputation of their relationship.
How do you prove a De Facto 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:
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.
- 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.
- 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.
How does a De Facto relationship differ from being married?
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:
- In Western Australia, the Family Court Act 1997 (WA).
- 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.
How long do couples in a De Facto relationship have to obtain a property settlement?
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.