Family Law · Additional Resources

Application Of Act

A de facto relationship is defined as a relationship between two persons living together as a couple i.e. living together on a genuine domestic basis in a relationship with intimacy, trust and personal commitment to each other. This includes same sex couples.

The main purpose of the legislation is to facilitate the resolution of financial matters at the end of a defacto relationship. It applies to all defacto relationships that end after the 21st December 1999.

Agreements

The legislation allows for de facto spouses to enter into cohabitation agreements before or during a relationship and agree in advance what property they each will keep upon separation.

The legislation also provides that de facto partners can enter into a separation agreement when they are ending their relationship or after they separate.

Cohabitation or separation agreements are called either “recognised agreements” or “non-recognised agreements”.

If the agreement is not recognised, then a court, in later proceedings, is not bound by the terms of the agreement and it can make any order it sees fit if a spouse was to bring an application for property settlement.

A court is however bound by a recognised agreement and can only vary it if there has been a fraud, mistake, duress, undue influence or unconscionablility in executing the agreement or if there is a serious injustice to one of the de facto spouses or a child of the de facto relationship.

To be a recognised agreement, the following matters must be satisfied:-

Court Intervention

If the defacto spouses can not reach an agreement power is given to the courts to adjust property of de facto partners to ensure a just and equitable settlement upon the breakdown of a relationship. Previously, claims were brought under the law of trusts or the law of equity, which was complicated and costly. This legislation has now been modelled on the provisions of the Family Law Act in relation to property settlements for married couples. To bring an application for a property adjustment order in a court under the de facto property legislation, you must have either:-

Matters For Consideration

The legislation requires de facto partners to make full and frank disclosure of their financial affairs. The court will then:-

Once the court has determined the contributions made by each of the de facto partners, it will then consider whether an adjustment is necessary to take into account future financial circumstances. Matters the court can take into account are:-

Time Limit

An application for property settlement must be made within two years after the day on which the de facto relationship has ended. This time limit can only be extended by applying for permission from the court.

Additional Powers

The court has also been given additional powers, including the power to make a declaration as to whether a de facto relationship exists or not; setting aside a transaction which is likely to defeat a property claim; and the granting of an injunction to protect property.

Costs

Property transactions entered into pursuant to a property adjustment order or recognised agreements will be exempt from stamp duty.

The usual rule is that each de facto spouse bears their own legal costs. However, in certain circumstances, the court does have the power to make an order for costs.

If you have recently separated from your de facto spouse or are contemplating separation, it is important to obtain legal advice to ensure your interests are protected.



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