“If a de facto couple separate, there are very strict requirements to be satisfied before they can make a financial or parenting order in the Family Court after separation.”

A de facto relationship is defined in Australia as a relationship between two individuals, who may be of the same or opposite sex, who have a relationship as a couple, are not legally married or related by family, and live together on a genuine domestic basis.

De facto relationships can be extremely varied and there is no set checklist of factors to prove that a couple is living in a de facto relationship, but the following is usually taken into consideration when assessing whether the couple is considered to be in a De facto relationship:

•      Are the couple living together?

•    How long have the couple been living together?

•    Do they have a sexual relationship?

•   Are they financially independent or do they share bank accounts, own property together, share weekly living expenses like electricity and gas and other utilities and insurance?

•    Do their family and friends consider them a couple?

•    Is there a mutual commitment between them?

•    Do they have any children which they care for and support?

If a de facto couple separate, there are very strict requirements to be satisfied before they can make a financial or parenting order in the Family Court after separation. The Family Court does not apply to de facto relationships unless the court is satisfied that the following applies:

1.     The relationship broke down after 1 March 2009 or 1 July 2010 (South Australia) AND

2.      They  were in a genuine de facto relationship with each other (not legally married) and it has now broken down, AND

3.      They have a geographical connection to the participating jurisdiction, AND

4.      They must also meet one of the following criteria:

• The period for the de facto relationship was for at least 2 years, OR

• There is a child in the de facto relationship, OR

• The de facto relationship is registered with the Department of Births, Deaths and Marriages under a prescribed law of a particular Australian State or Territory. De facto partners often register to show commitment to one another as well as to make it easier to prove they are in a relationship for financial matters such as tax and superannuation purposes, Centrelink and other government payments. Please note, different registration requirements may apply for each State and Territory of Australia, OR

• If in a de facto relationship for less than 2 years, when assessing their property or custodial claims, it is recognised that a significant contribution was being made by one party and the failure to issue an order would result in a serious misjustice to the person applying for the order.

Parties who are separating from a de facto relationship can apply to the Family Court, using the same forms as a married couple, to have their financial and parenting matters determined in the same way as married couples.  De facto financial orders must be applied for within two years of the last breakdown of the relationship (ie date of separation). They must apply to the courts to get permission for an extension, if beyond two years.

Before a court can make a parenting order, the parties must show they have made a genuine attempt to resolve the disputes via family dispute resolution, which is a process in which an accredited family dispute practitioner helps people resolve disputes relating to separation or divorce.

Once family dispute resolution has been attempted, a section 601 certificate will usually be issued unless there are unique circumstances such as family violence or child abuse by a party or risk of it.

Date of Separation importance

The specific date of separation becomes important especially for property settlement as well as for child support payments and Centrelink entitlements. It is the day the two individuals stop living together as a couple. If there are disputes over the date, the parties can provide evidence such as receipts for short term leases or accommodation, separation of finances, notification of government social services of the separation, informing family and friends.

If the separated couple continue to live in the same residence for various reasons including financial, children or for convenience, the law will usually require supporting evidence (by sworn written statements referred to as affidavits) that the parties were actually separated whilst living under the same roof. If the date remains in dispute, the court will have to make their own judgment based on all the facts.

If there have been any attempts to reconcile during the separation period, then provided it is for no more than 3 months, the length of the first separation can be then added to the subsequent separation period.  However, if the reconciliation is for more than 3 months then the date of separation begins from the end of the last reconciliation.

How to protect your assets from a de facto relationship

A Binding Financial Agreement (BFA) is often the most effective way as it considers what each person brings into the relationship, their contribution during the relationship and other conditions such as children of the relationship.

De Facto separation and your Will

In many states of Australia, it should be noted that separating from your de facto partner will not change your Will and any gift in your Will to your ex-de facto partner would likely still be valid on your death, even if you have separated and divided up your assets. It is highly recommended that you get legal advice about your relevant jurisdiction’s requirements,  amending your Will and any future claims that your ex-de facto may still have on your estate, for example if they were being financially maintained by you at the time of your passing or they are the parent of your child, who is still a minor they may still be entitled to a claim even if your will is amended.