Some of the most common questions our family lawyers get asked are to do with De Facto relationships.
1. What is a De Facto relationship?
Section 13A(1) of the Interpretation Act (WA) (1984) (Interpretation Act) defines a De Facto relationship as a relationship (other than a legal marriage) between 2 people who live together in a marriage-like relationship.
2. Does a De Facto relationship exist?
Section 13A(2) of the Interpretation Act provides that the following factors are indicators but are not essential when making a determination:
- The length of the relationship;
- Whether the 2 persons have resided together;
- The nature and extent of common residence;
- Whether there is, or has been, a sexual relationship;
- The degree of financial dependence or interdependence, and any arrangement for financial support;
- The ownership, use and acquisition of property (including any property owned individually);
- The degree of mutual commitment to a shared life;
- Whether the 2 persons care for and support children;
- The reputation, and public aspects, of the relationship.
Section 13A(3) of the Interpretation Act provides that it does not matter whether:
- The persons are different in sexes or the same sex
- Either of the persons is legally married to someone else or in another De Facto relationship.
3. When can a claim be made for property adjustment and maintenance orders?
Section 205X of The Family Court Act (WA) (1997) (FLA) provides the Family Court with jurisdiction to make orders if it is satisfied that:
- One or both of the parties to the application were resident in Western Australia on the day on which the application was made and that either;
- Both parties have resided in Western Australia for at least one third of the duration of their De Facto relationship or;
- Substantial contributions have been made in Western Australia of the kind mentioned in section 205ZG(4)(a), (b), or (c) of the FLA by the applicant (substantial financial and non-financial contributions to property, and homemaker/parent contributions to the welfare of the family).
Section 205Z of the FLA provides that the Family Court may make an order in relation to De Facto relationships only if it is satisfied that:
- There has been a De Facto relationship between partners for at least 2 years or;
- There is a child of the De Facto relationship who has not yet attained the age of 18 years and failure to make an order would result in serious injustice to the partner caring or responsible for the child or;
- The De Facto partner who applies for the order made substantial contributions of a kind mentioned in section 205ZG(4)(a), (b), or (c) and failure to make the order would result in serious injustice to the partner.
Section 205ZB of the FLA provides that a De Facto partner, whose De Facto relationship has ended, may apply for an order only if the application is made within two years after the relationship ended. However, a De Facto partner can make an application for leave to apply outside of the two year timeframe if significant hardship would be caused to the De Facto partner if leave were not granted.
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