De Facto Relationships

What is a de facto relationship?

To determine whether the parties were in a de facto relationship the Family Court will consider the criteria set out in section 13A of the Interpretation Act (WA) (1984).

13A. Reference to de facto relationship and de facto partner

(1) A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between 2 people who live together in a marriage- like relationship.

(2) The following factors are indicators of whether or not a de facto relationship exists between 2 persons, but are not essential –

(a) The length of the relationship between them;
(b) Whether the 2 persons have resided together;
(c) The nature and extent of common residence;
(d) Whether there is, or has been, a sexual relationship between them;
(e) The degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(f) The ownership, use and acquisition of their property (including property they own individually);
(g) The degree of mutual commitment by them to a shared life;
(h) Whether they care for and support children;
(i) The reputation, and public aspects, of the relationship between them.

(3) It does not matter whether

(a) The persons are different in sexes or the same sex; or
(b) Either of the persons is legally married to someone else or in another de facto relationship.”

A de facto relationship can therefore be defined as a relationship between 2 people who live together in a marriage-like relationship for a minimum of 2 years. The Family Court will look at the factors set out in 13A(2) to decide whether a relationship is “marriage-like”.

When can a de facto spouse make a claim for property settlement or maintenance?

A de facto spouse seeking property division or maintenance must commence proceedings in the Family Court of Western Australia within 2 years of the date of separation.

However, a de facto spouse can apply to the Family Court for leave to apply outside this timeframe on the basis that significant hardship would be caused to the party if leave was not granted.

Jurisdiction

Section 205ZX of The Family Court Act 1997 provides the Family Court of Western Australia jurisdiction to deal with de facto relationships where:

      1. one or both of the parties live in Western Australia on the day an application is made; and
      2. both parties lived in Western Australia for at least one third of the relationship; or
      3. the applicant has made substantial financial, non-financial or homemaker/parent contributions in Western Australia.

Section 205Z(1) of The Family Court Act 1997 states that the Family Court may make an order in relation to a de facto relationship only if it is satisfied that:

      1. there has been a de facto relationship between the partners for at least 2 years;
      2. 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 caring or responsible for the child; or
      3. the de facto partner who applies for the order made substantial contributions of a kind mentioned in section 205ZG(4)(a), (b) or (c) and failure to make the order would result in serious injustice to the partner.

The law in Western Australia does not permit the superannuation entitlements of a de facto spouse to be split and an amount transferred to their de facto spouse.

Summary

The Family Court now treats the breakdown of a de facto relationship similarly to the breakdown of a marriage. It is therefore recommended that de facto partners consider how they intend to distribute or protect their property and financial assets should their relationship breakdown. Parties are able to contract out of the provisions set out in the Family Court Act (WA) 1997 by entering into a binding financial agreement.

If you need assistance with a De Facto Relationship, please contact Carr & Co on 9322 8000 or via email at contactus@carrco.com.au.