The end of a de facto relationships: Property division for de facto couples

The Family Law Act (“the Act”) provides for the process of dividing property after the breakdown of a relationship. This applies to both married couples and couples in a de facto relationship, including those in an opposite-sex relationship and those in a same-sex relationship.

Pt VIIIAB of the Act gives power to the Federal Circuit and Family Court of Australia to settle property belonging to people in a de facto relationship.

What is a de facto relationship?

According to s 4AA of the Act, a person is in a de facto relationship with another person if:

• The persons are not legally married to each other; and
• The persons are not related by family; and
• The couple lives on a genuine domestic basis.

The existence of a de facto relationship is a matter of discretion by the Court. In the case of Bahan & Pinder [2021], the Respondent asked the Court to make a declaration that no de facto relationship existed, on the basis that the couple retained their own residences, were financially independent, and had a “sporadic”, non-exclusive sexual relationship.

The judge nevertheless ruled that a de facto relationship did exist, on the basis that the Applicant performed general housework for the other party, the Respondent had his clothes and personal possessions in the Applicant’s bedroom, and the Applicant frequently drove the Respondent to and from work. According to the Applicant’s evidence, the couple also shared daily expenses and would discuss issues normally discussed between couples, such as household equipment, each person’s daily activities, and payments for health and treatments. Furthermore, the couple had lived closely intertwined lives and the judge ruled that the parties were in a de facto relationship for around 4 years and 6 months.

Is Family law property applicable to your de facto relationship?

According to s 90SB of the Act, the Court can only make orders or declarations if it is satisfied that:

• The de facto relationship had lasted for a total period of at least 2 years, or
• There is a child of the de facto relationship, or
• The party of the de facto relationship who applies for the order has made a substantial contribution to the relationship and it would be a serious injustice to that party if there is a failure to make the order or declaration, or
• The de facto relationship was registered.

Additionally, s90SK of the Act requires that either or both members of the de facto relationship lives in the relevant state or territory in which the application is made, and the applicant has made substantial contributions in the state or territory in which the application is made.

What kinds of property can be divided?

• Property owned by the parties before the relationship
• Property purchased during the relationship
• Superannuation
• Business assets

It is important to note that property does not have to be divided at the end of a de facto relationships. However, if the parties do decide to divide the property and are unable to reach an agreement how to do this, then they can seek arbitration or a court order.

If you are concerned about your de facto relationship or would like advice about your options, our experienced lawyers are happy to help you.

Pannu Lawyers extensively practice in Family Law and regularly appear at the Federal Circuit and Family Court of Australia, which has court locations in Parramatta (NSW) and Dandenong (VIC). We are conveniently located within a walking distance from the Blacktown train station and can accommodate after hour appointment to suit you. Call our office on 02 9920 1787 to discuss your matter in a confidential manner.