The introduction of Legislation in 2008 was one of the most significant changes in the way the financial affairs of de facto couples are to be treated.
The previous system required couples whom had lived in a de facto arrangement to run proceedings in both the State Court in relation to their property matters and in the Family Court if there were issues regarding children.
The changes have now brought about uniformity and consistency of approach, relieving de facto couples of the unnecessary costs and inconvenience, both on the parties themselves and upon the Court system.
So now we have a system where uniform legal principles apply to married and de facto couples.
A person is deemed to be in a de facto relationship if:
- The persons are not legally married to each other; and
- The persons are not related by family; and
- Having regard to the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
In order to determine if a people have a relationship as a couple, the following circumstances are examined:
- 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;
- The care and support of children;
- Whether the relationship is registered as a prescribed relationship; and
- The reputation and public aspects of the relationship.
A Court deciding the question of whether a relationship exists is entitled to take into account any of the above factors and attach as much weight to those factors as seems appropriate to the Court in the circumstances of the case.
In New South Wales, the Court exercising jurisdiction will be the Family Court of Australia or the Federal Circuit Court of Australia. In determining a de facto matter, the Court will need to ensure certain factors are satisfied:
- That a de facto relationship exists (based on the above factors);
- That the relationship broke down after the commencement of the legislation being 1 March 2009;
- That the parties at some time during the relationship lived in New South Wales thereby having a geographical connection to the State.
- That the two-year limitation period to start the case has not lapsed;
In addition, one of the four following criteria must be met:
- That the period, or the total periods the of the de facto relationship is at least two years; or
- That a child has been born to the relationship;
- That the party applying for the Order has made substantial contributions of a certain kind to the relationship; and a failure to make an order would result in a serious injustice to the applicant.
- That the relationship is or was registered under a prescribed law of a state or territory.
The principles that apply to de facto relationships also apply to same sex relationships.