In Australia, separated same sex couples who were in a de facto relationship can apply to the Family Court for a legally binding property settlement.
Under the Family Law Act, a person is in a de facto relationship with another person if they have a relationship as a couple living together on a genuine domestic basis, and meet the criteria listed below. This definition includes opposite and same sex couples.
Separated de facto couples can apply to the Court for property settlement in the same way that married couples can, by using an Application for Consent Orders.
After separation, there is no minimum waiting period to apply for property settlement, and generally speaking, sooner is better than later.
However, it is important to be aware there are time limits within which de facto couples must lodge an application with the Family Courts for property settlement orders:
- For de facto couples there is a 2-year time limit from the date of separation.
Failing to commence proceedings within the time limit could mean losing your right to make a claim for property division.
How do I know if our relationship will be recognised as de facto?
Knowing whether your relationship qualifies as ‘de facto’ for the purposes of family law property settlement is not always a straightforward matter.
The Court must be satisfied of at least one of the following:
- The period of the relationship is at least 2 years
- There is a child of the de facto relationship
- One of the parties made substantial contributions to the property and it would be unjust if property settlement orders were not made
- The de facto relationship was registered in a State or Territory
If there is any doubt, the Court can consider all of the circumstances of the relationship to determine whether a de facto relationship existed. For example:
- The duration of the relationship
- The nature and extent of the common residence
- Whether a sexual relationship existed
- The degree of financial dependence or interdependence, and any arrangements between the parties for financial support
- The ownership use and acquisition of property
- The degree of mutual commitment to a shared life
- The care and support of children
- The reputation and public aspects of their relationship
At eDivorce, we have developed online Property Settlement Kits and eGuides to make the application for consent orders process simple. Our mission is to help you to complete your settlement in an affordable and stress-free way, so you can move forward with confidence.
The eDivorce Property Settlement eGuide has been prepared by experienced family lawyers who have assisted thousands of Australians with settlement. This guide provides you with step-by-step information and guidance to help you achieve a legally binding settlement. Avoid the trap of expensive legal fees and stressful court appearances.
We hope you enjoyed today’s blog.
The eDivorce team
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