Help! My relationship broke down but I’m not married!
Australia recognizes that people may wish to sort out the division of property and debt following the breakdown of a committed relationship outside of marriage. You will need to be in in a de facto relationship for a total of at least 2 years or meet a different criterion to qualify for a court ordered de facto property settlements. In this article Ezra Legal solicitor Lydia Ho explains what is considered a de facto relationship and what the ‘qualifying’ requirements are.
Unlike the gingerbread men we make for Christmas, we do not all fit into a cookie cutter world.
Relationships can be fluid and flexible and should be tailored to fit our unique circumstances. Not every person in a committed relationship wants or needs to be married.
However, the breakdown of such a relationship can leave one party in an unexpectedly vulnerable financial position. What happens then? Well, fret not! You can apply for a court ordered property settlement so long as you fit the requirements below. So, keep on reading.
What is a De Facto Relationship?
“De Facto” is Latin for “in fact” or in reality. A de facto relationship is a relationship in which the couple are not married but are still in a committed relationship. This qualifies them for certain legal rights, including a property settlement after separation.
Under section 4AA of the Family Law Act 1975 (Cth), a de facto relationship requires you to be with another person (of any gender):
- that you are not legally married to;
- you are not related to by family; and
- you are in a relationship as a couple living together on a genuine domestic basis.
You can even be in a de facto relationship despite one of you being married to another person!
What is considered to be “living together on a genuine domestic basis”?
Several factors are considered when determining the genuine domestic nature of a de facto relationship. These include:
- duration of your relationship;
- nature and extent of your common residence;
- whether a sexual relationship exists;
- degree of financial dependence or interdependence, and any financial arrangements between you;
- your degree of mutual commitment to a shared life;
- whether your relationship was registered;
- care and support of children;
- reputation and public aspects of your relationship.
You do not need to satisfy all of these requirements to be in a de facto relationship. However, there is a jurisdictional threshold if you desire a court ordered property settlement.
The threshold to qualify for a property settlement
A property settlement is an agreement between a separating couple that divides the assets, liabilities, debts and superannuation pool of both parties. A court ordered property settlement is beneficial because it is binding and not subject to change except under stringent circumstances.
To have a court ordered property settlement, you must satisfy at least one of the following criteria:
- be in a de facto relationship for a period totaling up to 2 years;
- there is a child of the de facto relationship;
- the de facto relationship is registered; or
- that the person applying for a property settlement has made substantial contributions (financial or non-financial) and it would be a serious injustice to not make a property order.
This means that mere co-habitation of less than 2 years is generally insufficient for a property settlement.
If you require further information, click on this link to the Federal Circuit and Family Court of Australia website: https://www.fcfcoa.gov.au/fl/fp/overview
Time Limits
If you have separated from your partner and believe that you satisfy the de facto relationship and threshold requirements for a property settlement, act quickly! There is a 2-year time limit to apply for property orders.
Are you in a de facto relationship or know of someone who may benefit from this article? Share this with them or come in to have a chat about your unique circumstances. We understand that every person has different needs. We can help you achieve a division of assets and liabilities that addresses your individual situation. We can also assist in getting a time extension for de facto property orders if required.
For more information and expert advice, ask to speak to Lydia Ho at Ezra Legal on (08) 8231 6100 or email lho@ezralegal.com.au
For information on the range of family related services that we provide, head to:
Lydia Ho
Solicitor
Ezra Legal
