De Facto Lawyers

De facto means, “in practice’, or “in effect”. So if the term is properly used, we should say “a de facto marriage”, but, you will hear “de facto relationship”, “de facto couples”, and so on.

The Family Court recognises couples that are in a de facto marriage, in a manner that is very similar (but not identical) to couples that are married.

A couple can be recognised as a ‘de facto couple’ if they are the same gender, and even if one or both of them are still married to another person.

So what is a de facto relationship?

Section 13A of the Interpretation Act 1984 lists the following criteria, which are used to determine whether a de facto relationship exists between two people. The Court would consider the situation as a whole, and it is not essential that all criteria are present:

• the length of the relationship;
• whether the couple lived in the same residence;
• the nature and extent of their common residence;
• whether there is, or has been, a sexual relationship;
• the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
• the ownership, use and purchase of their property (including property they own individually);
• the degree of mutual commitment by them to a shared life;
• whether the couple care for and support children; and
• how the couple’s relationship (as a couple) is perceived by others.

De facto couples, upon separation, may apply to the Family Court for property orders (if separated on or after 1 December 2002) and parenting orders. However, in Western Australia, de facto couples are unable to obtain superannuation splitting orders (although this is about to change).

There are some jurisdictional ‘boxes to tick’ before making an application to the Family Court of WA. For example, de facto couples must have lived together for at least two years or one party must have made a substantial contribution or the de facto couple has a child together under 18 and not obtaining a property settlement would result in serious injustice.

It is also required that one or both of the de facto couple is residing in Western Australia on the day the application is made and the de facto couple lived in Western Australia for at least a third of the relationship, or the applicant made a substantial contribution while residing in Western Australia.

If both parties agree that it was a defacto relationship, that is an easier path. If one party rejects that they were in a de facto relationship, then it will be a requirement to convince the Court of that relationship. That can sometimes be a challenge, and particular regard will need to be given as to the circumstances of the relationship, and the legal criteria that underpin a de facto relationship.

Whilst a de facto relationship begins, and ends, without a requirement for a formal arrangement, the date of separation should be noted. There are time limits imposed by the Family Court (after the end of a de facto relationship) that may restrict a person from a de facto relationship making an application for property orders.

Just as it is an option at the end of marriage, spousal maintenance can be available for parties after a de facto separation.

Finalising financial matters is recommended as soon as practicable after the end of the de facto relationship. This can be a process managed by the Family Court, resulting in a trial, or (hopefully) by consent, which is also a Court process, but one that ordinarily does not require attendance at Court (see the Consent Order page).

Of course, the above is merely an overview and not intended to be advice.

De Facto FAQ’s

At West Family Lawyers we offer assistance in this process, and are only a phone call away.
Call +61 8 9380 9111 if you would like our help.