The Family Court recognises de facto couples in a manner that is very similar (but not identical) to a married couple. It is not relevant if the de facto couple are the same sex, or even if one of them is still married to another person.
So what is a de facto relationship?
Section 13A of the Interpretation Act 1984 lists the following criteria, which are used to determine whether a de facto relationship exists between two people. The Court would consider the situation as a whole, and it is not essential that all criteria are present:
- the length of the relationship;
- whether the couple lived in the same residence;
- the nature and extent of their common residence;
- whether there is, or has been, a sexual relationship;
- the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
- the ownership, use and purchase of their property (including property they own individually);
- the degree of mutual commitment by them to a shared life;
- whether the couple care for and support children; and
- how the couple’s relationship (as a couple) is perceived by others.
De facto couples, upon separation, may apply to the Family Court for property orders (if separated on or after 1 December 2002) and parenting orders. However, in Western Australia, de facto couples are unable to obtain superannuation splitting orders.
There are some jurisdictional ‘boxes to tick’ before making an application to the Family Court of WA. For example, de facto couples must have lived together for at least two years or one party must have made a substantial contribution or the de facto couple has a child together under 18 and not getting a property settlement would result in serious injustice.
It is also required that one or both of the de facto couple is residing in Western Australia on the day the application is made and the de facto couple lived in Western Australia for at least a third of the relationship, or the applicant made a substantial contribution while residing in Western Australia.
Whilst a de facto relationship begins, and ends, without a requirement for a formal arrangement, the date of separation should be noted. There are time limits imposed by the Family Court (after the end of a de facto relationship) that may restrict a person from a de facto relationship making an application for property orders.
Finalising financial matters is recommended, as soon as practicable after the end of the relationship. This can be a process managed by the Family Court, resulting in a trial, or (hopefully) by consent, which is also a Court process, but one that ordinarily does not require attendance at Court.
Of course, the above is merely an overview and not intended to be advice. Family law is not an uncomplicated process.
At West Family Lawyers we offer assistance in this process, and are only a phone call away. Call (08) 9380 9111 if you would like our help.