Pursuant to Section 4AA of the Family Law Act, a de facto relationship is defined to be when two people are not married but live together, or have lived together as a couple on a genuine domestic basis (also having regard to all the circumstances of their relationship).
In deciding whether you were in a de facto relationship, the court will consider:
how long the relationship lasted
the nature and extent of their common residence
if you were in a sexual relationship
if you depended financially on each other, and any arrangements for financial support between you
how any property was owned and used and how you came to own it
if you had a commitment to a shared life together
how you cared for and supported any children you have
how other people saw your relationship.
In light of the above considerations, even if you and your partner are not living together on a full-time basis, there is a possibility that a Court may determine that you are in a de facto relationship.
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. For example, the idea that the only reason you live separately from your partner for half of the week is due to the fact that your partner works in a regional town may carry some weight.
If the relationship were to breakdown, and your partner was to apply to the Federal Circuit and Family Court of Australia to have any financial dispute determined, the following criteria must be met:
You were in a genuine de facto relationship with your former partner which has broken down; and
One of the following is met:
That the period for the de facto relationship is at least 2 years; or
That there is a child in the de facto relationship; or
That the relationship is or was registered under a prescribed law of a State or Territory; or
When assessing property or custodial claims in cases of a breakdown of a relationship, it is recognised that significant contributions were being made by one party and the failure to issue an order would result in a serious injustice
However, in consideration of the previously noted indicators of a de facto relationship, the court may determine that a de facto relationship was genuine, despite it not lasting for a period of at least 2 years.
Progressing the matter
In considering the above, if you feel as though your situation may constitute a de facto relationship or is likely to fall into this category in the near future, we recommend discussing with your partner the possibility of entering into a Binding Financial Agreement.
Once a Binding Financial Agreement under Division 4 of Part VIIIAB of the Family Law Act is put in place, if binding, it ousts the Court’s jurisdiction in relation to the division of assets upon the breakdown of the relationship.
If you would like more information on the above, or a quote for obtaining a Binding Financial Agreement, please contact our office on 03 9450 9400.
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