A de facto relationship can exist between two persons of different sexes and between two persons of the same sex.

According to Section 4AA of the Family Law Act 1975 a person is in a de facto relationship with another person if:

  • the persons are not legally married to each; and
  • the persons are not related by family; and
  • having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

For a court to determine whether a de facto relationship exists, the following circumstances will need to be considered:

  • 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;
  • whether the relationship is or was registered under prescribed law of a State or Territory as a prescribed kind of relationship;
  • the care and support of children;
  • the reputation and public aspects of the relationship.

De facto relationships which have broken down on a final basis prior to 1 March 2009 (excluding South Australia) are to be dealt with under the State and Territory Laws. There are however exceptions to this.

For de facto relationships that have broken down after 1 March 2009, a person can apply to the Family Court or the Federal Circuit Court to have property/financial matters deal with.

The Family Court and Federal Circuit Court can also deal with issues in relation to children of a de facto relationship.

In de facto relationships a two year limitation period applies from the date of separation in which to make an application dealing with maintenance, financial and property settlement. In some instances applications can be made after this limitation period has expired.

The Family Law Act 1975 also provides that a Court may not make an Order unless it is satisfied that the parties have been in a de facto relationship for at least 2 years or there is a child of the relationship or if there have been significant contributions made during the period of the relationship.

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