De facto relationship requirements
There are special requirements that must be met where you are applying for financial orders as a party to a de facto relationship. First, you must establish that a de facto relationship exists and then meet other requirements.
If the relationship is not deemed to be a de facto relationship in accordance with the Family Law Act, then the Court is unable to make any orders for property settlement or maintenance of a party.
Does a de facto relationship exist?
The Family Law Act defines persons as being in a de facto relationship if:
- the persons are not legally married to each other
- the persons are not related by family
- the persons are "living together as a couple on a genuine domestic basis."
There are many factors that a Court will consider when determining whether a couple were "living together as a couple on a genuine domestic basis."
Working out if persons are "living together as a couple on a genuine domestic basis"
The factors considered include:
- the duration of the relationship;
- the nature and extent of their common residence;
- whether a sexual relationship exists;
- the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
- the ownership, use and acquisition of their property;
- the degree of mutual commitment to a shared life;
- whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
- the care and support of children;
- the reputation and public aspects of the relationship.
It's a common misconception that couples "must have been living together for at least 2 years" for a de facto relationship to exist. The Court may consider any or all of the above factors when determining whether a de facto relationship existed and no weight has to be given to any one factor.
For example, in one family law case a couple lived in separate residences during their 7 year relationship. The couple had spent a considerable amount of time together at one person's house, as well as holidaying together. The court said that the fact that the parties did not reside together at one home and had maintained separate residences, did not preclude that they were "living together as a couple on a genuine domestic basis."
Unlike a marriage, a de facto relationship can exist between either a heterosexual or same sex couple. A de facto relationship can exist when one person to the relationship is married to another person or is in another de facto relationship.
Entitlement to apply for Consent Orders - de facto couples
De facto couples must meet the following requirements when seeking property settlement orders through the Courts:
- You were in a genuine de facto relationship with your former partner which has broken down.
- You meet one of the following four gateway criteria:
- That the period for the de facto relationship is at least 2 years
- That there is a child of the de facto relationship
- That the relationship is or was registered under a prescribed law of a State or Territory
- 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.
- You have a geographical connection to a participating jurisdiction (this means that either or both of the parties to the de facto relationship were ordinarily resident in any state or territory in Australia, other than Western Australia at the time of the application).
- Your relationship broke down after 1 March 2009 (or after 1 July 2010 if you have a geographical connection to South Australia only); although you may be able to apply to the courts if your relationship broke down prior to the date applicable to your state. You should seek formal legal advice in these circumstances.
You cannot apply for Consent Orders if your de facto relationship broke down more than two years ago.
Alteration of property interests for de facto couples
In property settlement proceedings after the breakdown of a de facto relationship, the court may make such orders as it considers appropriate. The Court must consider that the order is 'just and equitable.'
In considering what order (if any) should be made in property settlement proceedings, the court must take into account:
- the financial contribution to the acquisition, conservation or improvement of any of the property of the parties, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;
- the contribution (other than a financial contribution) to the acquisition, conservation or improvement of any of the property of the parties, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
- the contribution to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
- the effect of any proposed order upon the earning capacity of either party; and
- the matters referred to in subsection 75(2) (spousal maintenance provisions) so far as they are relevant; and
- any other order made affecting a party or a child of the relationship; and
- any child support that a party has provided, is to provide, or might be liable to provide in the future, for a child.
When to use the Online Consent Orders Application
If you were in a de facto relationship, you can use the Consent Orders Online Application for property settlement orders, provided the requirements have been met. You can only use the Consent Orders Online Application to make financial or property orders and not orders about children or to split or transfer superannuation.
You should read the requirements carefully, and apply those requirements to your personal circumstances. If you are unsure whether your personal circumstances meet those requirements, then we recommend that you seek formal legal advice.
When to seek legal advice
The Consent Orders Online Application is for straight-forward property settlement matters when couples have reached an agreement about important issues after separation. If you cannot reach an agreement then you should seek legal advice from a qualified person, such as a Lawyer. There are other circumstances when it is best to seek legal advice. For example, Consent Orders do not apply in relation to:
Property settlement between de facto couples (exception: unless the requirements are met)
Spousal maintenance in relation to a de facto relationship
Declarations about the existence of a de facto relationship
Orders under cross-vesting laws
Child maintenance orders for children who are under 18 years of age who were born after 1 October 1989 or whose parents separated after that date (this does not include arrangements for the care of children)
If any of the above circumstances apply to your situation, then it's best to seek formal legal advice.