The Family Law Act was changed a few years ago to allow couples who are in a de facto relationship to have the same rights as married couples with respect to financial matters such as property division and maintenance under the Family Law Act.
Legally speaking, de facto couples who have been in a relationship for at least 2 years have standing to make a Court application for the division of property/maintenance.
Even if a de facto relationship is less than 2 years, a party may still be entitled to make an application to the Court for property or maintenance Orders if there is a child of the relationship or the party has made substantial contributions to the parties’ assets and will otherwise suffer serious injustice if an Order is not made. However, the Court needs to be satisfied that you have been in a de facto relationship before the Court’s jurisdiction can be invoked to make property Orders.
Most people know whether they are married or not, but do you know whether you are in a de facto relationship?
Sometimes it will be obvious in that you may have been together for some time, have lived together, have children together and have worked together to build up your assets. The legislation has a broad definition of what a de fact relationship is but ultimately, every matter is determined on it’s own facts.
Under Australian law, you can only be married to one person at one time (otherwise you are committing the crime of bigamy). However, you can be in a de facto relationship with more than one person at a time and you can be married to one person and in a de facto relationship with another person at the same time (mistress/lover relationships come to mind!).
A recent Federal Circuit Court decision has highlighted the potential uncertainty of whether two parties are actually in a de facto relationship.
In that case, the parties were born overseas and had a wedding ceremony overseas and then came to Australia. The ceremony was not recognised as a marriage under Australian law. They had one child together but there was a dispute as to whether they actually lived together. The “husband” claimed that he let the “wife” live in his property rent free instead of him paying child support. They even went on a holiday together with their child to Disneyland. Some of the other facts in this case were somewhat unique.
The “wife” claimed that the parties were in a de facto relationship for 6 years but the “husband” denied that they were in a de facto relationship at all. Ultimately, the Court found that the parties were not in a de facto relationship and dismissed the “wife’s” application.
This case highlights the complexities of the law and the need to get specialised advice from a family law expert. Here at Farrar Gesini Dunn, we deal with these type of matters on a day to day basis.
If you are unsure of whether you are in a de facto relationship, you need specialist advice from a family lawyer about your rights. We are expert family lawyers in Canberra and Melbourne who specialise in all family law matters.
If you need further information, would like some legal advice in relation to your situation, or just want to come in for a chat, contact one of our experienced team members at Farrar Gesini Dunn to discuss how we can help you.