Consent Orders for de facto couples
De facto relationship requirements
There are special requirements that must be met where you are applying for Consent Orders as a party to a de facto relationship. You must establish that you are entitled to apply and meet other requirements. There are different requirements, depending on the type of orders you are seeking.
Does a de facto relationship exist?
A de facto relationship is defined as 2 persons in a "relationship as a couple living together on a genuine domestic basis". There are many factors that a Court will consider when determining whether a de facto relationship exists in the individual circumstances of each case.
It's a common misconception that couples "must have been living together for at least 2 years" for a de facto relationship to exist. There are many factors that the Court may consider when deciding whether parties were in a de facto relationship or not, such as the length of the relationship, whether the couple were living together and whether a sexual relationship existed, amongst other things.
Entitlement to apply for Consent Orders - de facto couples
De facto couples must meet the following requirements when seeking property settlement orders (not maintenance orders) through the Courts:
- The parties have not entered into a previous binding financial agreement relating to property; AND
- That the period, or the total of the periods, of the de facto relationship is at least 2 years; OR
- There is a child of the relationship; OR
- A party to the relationship made substantial contributions to a property that increased it's value (this could be financial or non-financial contributions). For example, do it yourself home renovating, decorating or investing in a property to increase its value; AND failure to make the order or declaration would result in serious injustice to the applicant; OR
- That the relationship is or was registered under a prescribed law of a State or Territory.
You cannot apply for Consent Orders if your de facto relationship broke down more than two years ago.
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 should read the requirements carefully, and apply those requirements to your personal circumstances. If you are not sure 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 and there are times when you should seek legal advice from a qualified person. Consent Orders do not apply in relation to:
- spousal maintenance in relation to a de facto relationship
- child maintenance in relation to children under 18 who were born after 1 October 1989 or whose parents separated after that date.
If any of the above circumstances apply to your situation, then it's best to seek formal legal advice.
Meaning of de facto relationship
A person is in a de facto relationship with another person if:
- the persons are not legally married to each other; and
- the persons are not related by family; and
- having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Working out if persons have a relationship as a couple
- Those circumstances may include any or all of the following:
- 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.
The Court will consider all of the above factors when determining whether a de facto relationship existed.
Note that a de facto relationship can also exist between 2 persons of the same sex.