Is He My Boyfriend or My De Facto Partner?

by Peter Magee on October 13, 2016

Anne-Louise Pham

From an emotional point of view, many people would argue that their partner is just a “boyfriend” or “girlfriend”. It may be a period of time or significant event before the parties are embedded to one another in a long-term committed relationship. However, from a family law point of view, a Court may determine that you and your former partner were, in fact, in a de facto relationship. If so, you may be exposed to a financial claim by your ‘ex’.

Before a family law court can make any orders of a financial nature (in respect to parties who are not or were not married), the court must first make a declaration under s 90RD of the Family Law Act 1975 (Cth); that is a declaration that there was in fact a de facto relationship. Where one party claims that the parties were not living in a de facto relationship as defined under s 4AA of the Family Law Act 1975(Cth), then the Court must first determine whether the parties where in fact living in a de facto relationship or not. If the relationship does not fit the definition under s 4AA of the Family Law Act 1975 (Cth), then the Court has no jurisdiction to make financial orders.

So how do you determine whether you are or were in a de facto relationship?

The Court is directed under section 4AA of the Family Law Act 1975(Cth) to look at a whole range of factors including:

  • The duration of the relationship;
  • Whether the parties lived together;
  • Whether a sexual relationship existed between the parties;
  • Any degree of financial dependence or interdependence between the parties;
  • The ownership, use and acquisition of property between the parties i.e. did the parties own any joint property?
  • The degree of commitment to a shared future between the parties;
  • Whether the relationship was registered under any State or Territory law;
  • The existence of any children to the relationship;
  • Evidence about how the parties portrayed themselves to the public.

Before a Court can make Orders in respect to parties claiming to have been in a de facto relationship, the Court must be satisfied of the following:

  • That you and your ex partner were in a genuine de facto relationship which has irretrievably broken down.
  • That you and your ex spouse can satisfy one of the following:
    • that you and your ex partner were in a de facto for at least 2 years;
    • that there is a child to your relationship;
    • that the relationship is or was registered under a prescribed law in a State or Territory;
    • That significant contributions were made by both or one of the parties and as such, the failure to make any Order would cause a party serious injustice.
    • that you or your spouse have a geographical connection with Australia.
    • that your relationship with your ex partner broke down after 1 March 2009- however, you might be able to apply under state or territory law if your relationship broke down before that date.

You should also be aware, that there is a time limit to bringing property applications in respect to de facto relationships. You have two years to file your application following separation. Separation is deemed to be the date you communicated your separation and considered the relationship to have irretrievably broken down.

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