Were you in a de facto relationship and now need family law advice? Read this blog post to find out more.
Are you, or were you, in a de facto relationship?
In Western Australia, two people are considered to be in a de facto relationship if they live together in a marriage-like relationship. The factors that are looked at to determine whether two persons are in a de facto relationship are as follows:
- the length of the relationship;
- whether they have lived 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 arrangements of financial support;
- the ownership, use and acquisition of their property, including property they own individually;
- the degree of mutual commitment to a shared a life;
- whether they care for and support children; and
- the reputation, and public aspect of the relationship.
People can be in a de facto relationship if they are the same sex or different sexes, or if one or both of them are legally married to someone else, or in another de facto relationship.
Application for property settlement and/or partner maintenance
In order to apply for orders for property settlement and/or partner maintenance in the Family Court of Western Australia, you must satisfy the following requirements:
- at least you or your former partner must be living in WA on the day the application is filed; and
- you and your former partner must have both resided in WA for at least a third of the de facto relationship; OR
- substantial contributions were made by one or both of you while living in WA; and
- you and your former partner lived in a de facto relationship for at least two years; OR
- you and your former partner lived in a de facto relationship for less than 2 years but that there is a child of the relationship under the age of 18 years and failure to make the order sought would result in serious injustice to the party caring or responsible for the child; OR
- you and your former partner lived in a de facto relationship for less than 2 years but that the partner applying for the order has made substantial financial, non-financial or homemaker/parent contributions and a failure to make the order would result in a serious injustice.
If you were in a de facto relationship, the time limit in which to file an application for property settlement or partner maintenance is 2 years from the date of separation. If you have not filed an application within this time then you will need to seek leave from the Family Court to proceed out of time.
In WA, the law with respect property settlement is effectively the same for both married and de facto couples, other than the Court's powers in relation to superannuation. In WA, superannuation is currently treated as a financial resource and not an asset. If the parties were in a de facto relationship, the Family Court of WA does not have the power to make superannuation splitting orders transferring one parties' superannuation to the other party. The Family Court of Western Australia can make superannuation splitting orders if the parties were married. For de facto couples in WA, the parties' superannuation is still taken into account when considering what a fair and equitable property settlement would be.
Update 25 October 2018: The law with respect to superannuation splitting orders for de facto couples is set to change in WA. De facto couples in WA will soon be able to transfer their superannuation from one party to the other.
If you were in a de facto relationship and need family law advice please contact Applecross Family Lawyers on (08) 9364 9915 or 0474 458 340.