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What is a De Facto Relationship?

A person is considered to be in de facto relationship with another person if having regarding to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

These circumstances may include any or all of the following:-

  • The duration of the relationship;
  • The nature and extent of their common residence;
  • Whether a sexual relationship exists;
  • The degree of financial dependence and interdependence;
  • Any arrangements for financial support between them;
  • Ownership, use and acquisition of their property;
  • The degree of mutual commitment to a shared life;
  • The care and support of the children;
  • Whether the relationship was registered under law;
  • The reputation and public aspects of the relationship.

Division of Assets & De Facto Relationships

A Court can make Orders in respect of the division of assets and liabilities of a de facto couple only if the Court is satisfied that:-

  • The period (or total periods) of the de facto relationship is at least 2 years; or
  • There is a child of a de facto relationship; or
  • A party to the de facto relationship made substantial financial and/or non-financial contributions and that a failure to make an adjustment to one party would result in a serious injustice.

Time Limits

If you are separated from your de facto partner for quite some time, it is important for you to be aware that there is a two year time limit in seeking a division of your assets and liabilities. If you are past the two year time limit, you may need to seek leave (permission) of the Court for your property settlement to be heard out of time. 

Legal Advice

  • If you have recently separated from your de facto partner and you are not sure about your entitlements to the assets of the relationship you should book an appointment to see one of our solicitors.
  • If you are considering entering into a de facto relationship and you own a lot of assets you may wish to considering seeking legal advice about a Binding Financial Agreement in order to protect your assets should you separate from your partner.

Example Scenarios

Scenario #1

John and Mary commenced living together in August 2018 and separated in November 2022. During the course of their relationship they had 1 child and also purchased a property together. In the circumstances, there is no doubt that John and Mary were living as a couple on a genuine domestic basis.

Scenario #2

Reginald and Shenae commenced living together in January 2021 at Reginald’s house in Henley Beach and they separated in July 2022 – a total period of approximately 18 months. There are no children of the relationship and Reginald and Shenae do not have any assets held in their joint names.

Shenae is wondering whether she has a claim against Reginald as she feels that she contributed to the relationship by doing most of the cooking and cleaning around the house whilst Reginald went to work.

Shenae first needs to satisfy that the parties lived together on a genuine domestic basis. Assuming she is able to satisfy this, she has not met the two year threshold, there are no children of the relationship and so Shenae will also need to demonstrate that she made a substantial contribution in order to make a claim against Reginald.

However, Shenae then remembers that in December 2021 she received $100,000 from an inheritance and utilised those funds to pay down the mortgage on Reginald’s Henley Beach property. In this scenario, Shenae has a very good argument that she made a substantial contribution and therefore has a claim against Reginald.

 

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