Plain English Guide to De Facto Relationships

Prior to the introduction of the De Facto Relationships Act in 1984 there was no special provision for property settlements between couples who had lived together in a de facto marriage relationship and subsequently separated. These people had to rely upon the general law in relation to property interests. Their rights under the general law were uncertain and costly to pursue. Many former de facto couples were not adequately compensated for their contributions during the relationship.

In 1984 the De Facto Relationships Act introduced in New South Wales made provision for property settlements between de facto couples. It also made provision for the payment of maintenance in limited circumstances. The De Facto Relationships Act has undergone significant amendments since 1984 and is now known as the Property (Relationships) Act. The Act now applies not only to male/ female de facto partners but also couples of the same sex and other adults living together in a domestic relationship.

This Plain English Guide answers some of the more commonly asked questions regarding claims under the Property (Relationships) Act, but remember, your lawyer is available to answer any other questions or provide advice when you need it.

What is a de facto relationship?

A de facto relationship is a relationship between two adult persons who live together as a couple and who are not married to one another or related to one another. They do not have to be of the opposite sex. Members of the same sex living together as a couple may be regarded as being in a de facto relationship. In order to determine whether two people are in a de facto relationship it is necessary to consider all the circumstances of their relationship including such things as:

(a) the duration of their relationship;

(b) their living arrangements;

(c) whether or not they have a sexual relationship;

(d) their financial arrangements;

(e) the way in which they own, use and acquire property;

(f) the extent to which they are committed to a shared life;

(g) the care and support of their children;

(h) the performance of household duties;

(i) the way their relationship is represented to others.

What other types of relationships give rise to claims for property settlement?

Two people living together in a close personal relationship, whether or not they are related, where the relationship involves the provision of domestic support and personal care, may have the right to make a claim under the Property (Relationships) Act in the event the relationship breaks down. An example would be an ageing parent living with an adult child in circumstances where the child is looking after the parent.

What are the prerequisites for making a claim?

The parties must have resided within New South Wales for a substantial period of their relationship or there must have been substantial contributions made in New South Wales in order for the Property (Relationships) Act to apply. The parties must have lived together for not less than two years. However, if the relationship was of less than two years a court may make an order for property settlement if:-

(a) there is a child of the parties; or

(b) the person seeking a settlement has made substantial contributions for which they would not otherwise be adequately compensated; or

(c) the person seeking the settlement is caring for a child of the other party and would suffer a serious injustice if not allowed to make an application.

An application must be made within two years after the relationship ceases although a court may allow a party to make a claim after this time in certain circumstances.

What are the relevant considerations in a property settlement?

The court must consider:

(a) the financial and non-financial contributions made by or on behalf of each of the parties to their property and financial resources; and

(b) the contributions made by either of the parties to the welfare of the other party or to the welfare of the family constituted by the parties and any children in the household.

Is a property settlement between de facto partners or others in a domestic relationship different to a property settlement between a couple who were married?

Where there is a dispute about property settlement between a couple who are or have been married, the Family Law Act requires the court to take into account the various contributions of the parties. The court must also consider the future circumstances of the parties and make an adjustment in favour of a party who will be financially disadvantaged in the future. A property settlement between de facto partners does not take into account these future needs considerations.

What about maintenance?

The Property (Relationships) Act makes limited provision for orders for maintenance of a party to a domestic relationship. A court can make an order for maintenance if the person seeking maintenance is unable to support himself or herself adequately because:

(a) that person has the care of a child of the relationship or a child of the other party who is under 12 (or if handicapped, under 16); or

(b) that party’s earning capacity has been adversely affected by the circumstances of the relationship and an order for maintenance would increase the person’s earning capacity by enabling him or her to undertake training or education.

Can parties entering a domestic relationship enter into a binding agreement as to what will happen if their relationship ends?

The Property (Relationships) Act makes provision for written agreements which may be entered into prior to the commencement of the relationship, during the relationship or following the termination of the relationship. These agreements will be binding provided they satisfy certain requirements.

What about children?

The same law applies to disputes concerning the children of de facto partners as applies to children born to married parents. All children, whatever the circumstances of their birth, are covered by the provisions of the Family Law Act and the Child Support (Assessment) Act. See our Plain English Guides on these topics for further information.

Does Coleman & Greig have specialist expertise in the area of family law?

At Coleman & Greig we have a number of lawyers, including accredited specialists, practising exclusively in the area of family law. As well as our practical experience in all aspects of family law, other specialist lawyers in the firm are able to contribute their expertise in areas such as commercial, taxation and property law where such issues need to be considered in dealing with your case.

We aim to provide the service that is right for you, whether that be simply advising you as to your rights and obligations, assisting you in negotiating a resolution of issues in dispute or representing you in contested proceedings in the Family Court.

Where appropriate we will work with your other advisers, such as your accountant, so as to achieve a good understanding of all aspects of your case and provide you with the best possible representation.

How much will it cost to retain the services of Coleman & Greig?

Prior to commencing to act for you we can give you an estimate of our fees. We will provide you with a detailed costs agreement setting out clearly the basis on which we will charge you for work done on your behalf. If you are involved in court proceedings we will give you an up-to-date estimate of fees at each stage of the proceedings. We will bill you regularly so that you are fully informed as to our fees and charges.

<<< Back