Family Law And De Facto Relationships

De facto relationships are recognised under Australian Family Law with regards to separation, property and children.  

The law does not discriminate between heterosexual de facto couples and same sex de facto couples.

How is a de facto relationship defined?

There is no singular definition of a de facto relationship, but it is generally accepted as a relationship in which two people live together in a domestic situation as a genuine, committed couple.   

De facto couples are not legally married to one another and nor can they be related by family.  

The law recognises a de facto relationship irrespective of whether either party is legally married to another person.  A de facto relationship does not have to be mutually exclusive.

The Family Court of WA can only make orders if the de facto relationship meets certain requirements, generally, the couple needs to have lived together for at least two years.  There are exceptions to this timeframe, such as when children are involved or one of the parties has made significant contributions to the couple’s joint property. Also, one of the parties is residing in Western Australia on the day the application is made, and there need to be a connection to Western Austrlia.

The absence of a legally binding contract means there is a degree of complexity in determining whether two people have been in a de facto relationship.   Each situation is assessed on a case-by-case basis.  

However, the Court has established a set of factors that it will consider in order to determine whether a de facto relationship exists – or had existed.  These include:

  • How long the couple had been living together as a couple
  • Whether the couple had a sexual relationship
  • Whether there were any children from the relationship and the care and support of those children
  • Financial arrangements, including the degree of financial dependence or independence 
  • Property ownership and use (including the extent and nature of a shared home)
  • The extent of the couple’s mutual commitment to their shared life
  • The public aspects and reputation of the relationship

It should be noted that none of the above factors is a prerequisite for a de facto relationship and no factor necessarily carries more weight than another.  The Court may also take other factors into account.

If there is any dispute about the validity of a couple’s de facto relationship, it is recommended that they seek advice from a family lawyer.  

What happens when a de facto relationship breaks down?

Many de facto couples can end their relationship amicably. However, in the event of a dispute about either the existence or the duration of a de facto relationship, it is recommended that you seek legal advice. An experienced family lawyer can help you compile all the information and evidence necessary to have your de facto relationship verified by the court.

It is best for everyone involved to try and resolve issues without going to court.   If you are able to work out your agreement/s amicably, it is possible to apply to the Court to have that agreement formalised by way of a Consent Order.

If there is a dispute, how does a de facto couple proceed?

In Western Australia, property and parenting matters for separating de facto couples are resolved in the Family Court of WA.

If a de facto couple is unable to reach agreement on issues relating to property or children, either party can make an application.

In terms of property settlement, the Court is able to make an order with regards to the division of the couple’s net asset pool; this power of the Court extends to property that was acquired before, during or after their separation.  The Court will evaluate the type of contribution made by each party – both financial and non-financial – when determining how property should be divided.  The Court also has the power to make orders such that one party has to pay spousal maintenance to the other party.

Is there a time limit to applying for a court order?

De facto couples have two years from the date of separation to apply for financial orders.  If two years have already lapsed, parties need to seek permission from the Court to make an application, which may or may not be granted by the Court.

Please note that this article is intended as general information only and does not constitute legal advice.  However, if you would like further information on de facto relationships and family law, you are welcome to get in touch with the team at West Family Lawyers.  We have extensive experience in all aspects of family law and you can reach us through our website, or by phone on 08 9380 9111.

Mark Cheveralls

Mark is a senior lawyer with a broad experience in family law.  His blend of business management experience and legal competencies is particularly beneficial to resolving complicated family law disputes concerning property and children.

Mark is settlement-focused and energetic about negotiating fair outcomes with a track record of brokering good results for his clients.  He is part of a small team of trusted family lawyers in Perth practising in the Family Court of Western Australia.

Find out more about Mark here.

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