Under the Family Law Act, de facto couples can apply for property settlement in much the same way as married couples. To be eligible, the relationship must meet certain criteria, such as having lasted for a sufficient period, having a child together, or where one party has made substantial contributions to the relationship and not obtaining a settlement would result in serious injustice.

What is a de facto relationship?

A de facto relationship is legally defined as a relationship between two individuals who live together on a genuine domestic basis but are not married to each other. This type of relationship is characterised by a shared life and mutual commitment, like that of a married couple, even though the individuals have not legally formalised their union through marriage.

When determining the existence of a de facto relationship, the law does not strictly require both parties to be unmarried and exclusively involved with one another. In fact, the courts acknowledge that a de facto relationship can still exist even if one person is legally married to someone else or involved in another de facto relationship at the same time. The key factor is whether the relationship in question meets the necessary criteria of living together on a genuine domestic basis.

This recognition allows for the complexities of modern relationships and ensures that individuals in de facto relationships can still access certain legal rights and protections, even when their circumstances don’t fit within traditional boundaries of marriage or exclusive partnerships.

How is a de facto relationship determined?

When it comes to family law and property settlement, it’s not always straightforward and the court will determine a de facto relationship based on a list of criteria. While not all these factors need to be present, they will consider the following:

·   The duration of the relationship to determine whether the parties lived together for two years or more.

·   The existence of a sexual relationship.

·   Whether there are any children from the relationship.

·   The nature and extent of shared residence.

·   Whether one partner was financially dependent on the other.

·   The level of mutual commitment to a shared life.

·   The public aspects and reputation of the relationship.

·   Ownership, use, and acquisition of property by the parties.

What happens when a de facto relationship breaks down?

When a marriage breaks down and property settlement is needed, it’s easy to prove the relationship through a marriage certificate. For those in a de facto relationship, they’ll need to prove to the court that their relationship was real. Once proven, financial and parenting matters are seen in the same way as married couples.

To apply for de facto financial orders, you must do so within two years of the relationship breakdown. After this period, you will need the Court's permission to file an application.

If you’re uncertain about whether you’re in a de facto relationship or if you just need some guidance through the process, it’s good to seek legal advice to make the process less overwhelming.

Do you have any other questions regarding property settlement? We’ve got the answers.

Advice and guidance through property settlement

Dividing assets between separating couples can be tricky, particularly when complex financial structures are in place, or there are uncertainties around whether a de facto relationship exists. At Eliza Legal, we can provide you with advice regarding your property settlement. Eliza Legal is a leading family law firm based on the Mornington Peninsula, dedicated to providing tailored legal services with compassion and integrity. Contact us today and let’s see if we’re a good fit! We’d love to help you.

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