De Facto Relationship Lawyers in the Hills District and Sydney

What is a de facto relationship?

Under section 4AA of the Act, a de facto relationship exists where two people are not legally married to each other, are not related by family and, having regard to all the circumstances, have a relationship as a couple living together on a genuine domestic basis. The relationship may be between people of the same sex or different sexes. A person may be in a de facto relationship even if legally married to someone else or in another de facto relationship.

In deciding whether a de facto relationship exists, the court may consider the following:

• the duration of the relationship;
• the nature and extent of the parties’ common residence;
• whether a sexual relationship existed;
• the degree of financial dependence or interdependence between the parties and any arrangements for financial support between them;
• the ownership, use and acquisition of property;
• the degree of mutual commitment to a shared life;
• whether the relationship was registered under State or Territory law;
• the care and support of children; and
• the reputation and public aspects of the relationship.

No particular factor must be present. The court considers the circumstances as a whole and decides how much weight to give each factor.

In some matters, one person may say that there was a de facto relationship, while the other may deny it. These disputes can be important because the existence of a qualifying de facto relationship may determine whether a property settlement or de facto maintenance claim can proceed. Evidence about the parties’ living arrangements, finances, property, mutual commitment and how the relationship was presented to others may therefore become significant.

Arnold Hills will provide you with tailored legal advice about the strengths and risks of your position and the evidence that may be relevant.

De facto relationships and property settlement

Under the Act, eligible parties to a de facto relationship that has broken down may apply to the court for a property settlement or de facto partner maintenance. The general principles that apply to determining property matters are substantially the same as those that apply to married couples, although additional eligibility requirements apply to de facto relationships.

Before the court can make certain property or maintenance orders, the parties must satisfy certain threshold requirements. In addition to establishing that a de facto relationship existed and has broken down, at least one of the following must apply:

• the de facto relationship lasted for at least two years; or
• there is a child of the de facto relationship; or
• the relationship is or was registered under a State or Territory law; or
• one party made substantial contributions recognised under the Act and a failure to make an order would result in serious injustice to that party.

There are also geographical requirements that need to be satisfied before the court can determine a de facto property or maintenance matter. This can be particularly relevant where the parties have lived in different States, Territories or overseas.

If you’ve recently separated from a de facto partner, Arnold Hills can advise you on your rights and entitlements, explain your options and guide you through the next steps to protect your financial interests.

Time limits for de facto property claims

Strict time limits apply to de facto property and maintenance applications.

An application for a de facto property settlement should generally be made within two years of the end of the de facto relationship. If the time limit has expired, you can only start court proceedings if the other party consents or the court grants leave (permission). The court will not automatically grant leave to commence proceedings out of time and specific requirements must be satisfied. It is therefore important to obtain legal advice as early as possible.

Arnold Hills will assess your matter and advise you on your rights, obligations, applicable time limits and the steps you can take to resolve your property and financial matters following the end of your de facto relationship.

De facto relationships and parenting arrangements after separation

Following the end of a de facto relationship, parents may need to consider arrangements for their children, including where the children live, the time they spend with each parent, schooling, health, travel, communication, changeover arrangements and other matters.

The same family law principles apply to parenting matters whether the parents were married or in a de facto relationship. When making parenting orders, the court must regard the best interests of the child as the paramount consideration. Parenting arrangements may be agreed to informally, recorded in a parenting plan, or formalised through parenting orders made by the Federal Circuit and Family Court of Australia, either by consent or following court proceedings.

Arnold Hills will advise you on the options available and the steps you can take to resolve parenting arrangements following the breakdown of your de facto relationship. For more information, see our Children & Parenting page.