DO YOU HAVE A DE FACTO CLAIM FOR PROPERTY SETTLEMENT?
WHAT IT MEANS BY “DE FACTO”?
De facto is a Latin expression. It means “in fact” or “in reality” as opposed to “de jure” (“according to law”).
The dictionary defines “de facto spouse” as:-
“A legally undeclared spouse; or
A partner in a relationship which is not officially declared as marriage”.
Under the Australian Constitution, the Federal Parliament has power to make laws for marriage and divorce.
The law relating to “de facto” relationships used to differ from State to State, but in 2009 several States (including Queensland) agreed to hand over to the Commonwealth their power to make “de facto” legislation. The aim was to have the same laws throughout Australia.
As a result, parties to a “de facto” relationship can now seek remedies for property settlement and spousal maintenance under the Family Law Act 1975.
WHO CAN CLAIM?
“De Facto” partners now have similar rights to those of married couples.
To make a “de facto” claim:-
- The relationship must have existed for at least 2 years (which may be made up of smaller periods) or
- There must be a child of the relationship; or
- The Applicant must have made substantial contributions and a failure to make an Order would result in serious injustice; or
- The relationship must have been registered in a State or Territory.
The Application must be brought within 2 years after the relationship ended or within an extended time if the Court grants leave. Sometimes there is argument over the precise dates. This can make the difference between the success or failure of a claim.
“De facto” claims can be complicated and hotly contested. Often the parties disagree as to whether or not a relationship existed.
The Family Law Act has introduced a definition of “de facto” which is much wider than the dictionary definition.
When working out if persons have a relationship as a couple, the Court may take into account:-
- length of the relationship;
- to what extent the parties lived together;
- whether a sexual relationship exists;
- degree of financial dependence, and arrangements for financial support;
- ownership of property;
- degree of mutual commitment to a shared life;
- whether the relationship is or was registered in a State or Territory;
- care and support of children;
- public aspects of the relationship.
In deciding whether or not a relationship exists, the Judge need not make any particular finding on these matters!
The Judge has the sometimes difficult task of deciding whether or not there is (or was) a de facto relationship.
For the purposes of this Act:
- a de facto relationship can exist between parties of the same or opposite sex; and
- a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
This remains a complicated field of law in which no 2 cases are the same!