De Facto Relationships & Separation | Family Law Mediator

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What is the definition of de facto relationship?

A couple, living together on a genuine domestic basis
The circumstances of the relationship are considered
A couple does not have to be living together full-time
A relationship can be considered to be in a de facto relationship even if one is or both are still legally married to another person or in another de facto relationship

The Family Law Act 1975 (Cth) defines a de facto relationship in Section 4AA as a relationship that two people, whether of the opposite sex or same sex (who are not married or related by family) have, as a couple, been living together on a “genuine domestic basis”.

The circumstances of the relationship will have a bearing on whether or not a de facto relationship exists. These circumstances include, but are not limited to, the following:

The duration of the relationship;
Common residence;
Existence of a sexual relationship;
Degree of financial interdependence or dependence;
Mutual commitment to a shared life;
Property ownership;
Registration of the relationship;
Children; and
Public aspects of the relationship.

It is possible for a de facto relationship to exist where:

One or both of the parties are still legally married to another person;
One or both of the parties are also in another de facto relationship; or
There is a committed relationship but the parties do not live together full-time.

Living together is only one factor that the Family Court will consider in determining if a de facto relationship exists.

How are children of a de facto relationship dealt with upon separation?

Children of a de facto relationship are treated in the same manner as children of a married couple

Where there are children of a de facto relationship, the Family Court a follow the same process to resolve de facto parenting disputes as for married parenting disputes (click here for further information). We can assist you in mediation for parenting issues, whether you were married or in a de facto relationship.

How are financial matters of a de facto relationship dealt with?

Must meet Family Court’s criteria
Two-year time limit after separation

A separated de facto couple can apply to the Family Court with respect to their financial dispute following the same process as for married couples (click here for further information). A time limit does apply, so that this application must be made within two years of separation.

Before the Family Court will determine a de facto financial dispute, it must be satisfied of several criteria:

The de facto relationship was genuine and has since broken down;
The applicant meets one of the following criteria:
1. The de facto relationship was at least two years in duration;
2. There is a child of the de facto relationship;
3. The relationship was registered; or
4. One party made significant contributions to the relationship.
There is a geographical connection to the participating jurisdiction; and
The relationship broke down after 1 March 2009 (or 1 July 2010 in South Australia).

How can mediation assist with parenting matters and financial matters of a de facto relationship?

Family Dispute Resolution is compulsory in many circumstances
Mediation allows collaboration between the parties
If agreement is reached, parties can enter into Consent Orders (for children and financial matters or a Binding Financial Agreement (for property matters only)

The Family Court process is costly (both financially and emotionally) to both parties. Where a couple is seeking to resolve their parenting and/or financial dispute after the breakdown of a de facto relationship, it can be beneficial to attempt mediation first. This is also a compulsory Family Court requirement in numerous matters (click here for further information). Mediation can allow the parties to collaborate and attempt to amicably resolve their dispute and reach a compromise. If agreement is reached at mediation, we will write the agreement in the legal format of draft consent orders, so that you can file this with the Family Court, which after reviewing it will convert it into legally binding and enforceable Consent Orders.

What are the exceptions to Family Court Orders for de factor relationships?

A Binding Financial Agreement made prior to or during a de facto relationship
It is important to seek legal advice

A Binding Financial Agreement can be made prior to entering into a de facto relationship or during a de facto relationship. It can state how a couple will distribute their property in the event of the breakdown of their relationship. Therefore, a Binding Financial Agreement allows a de facto couple to dictate how they want their property to be settled, rather than leaving this at the mercy of the Family Court. There are strict rules surrounding Binding Financial Agreements, such as both parties having obtained independent legal advice (click here for further details of these requirements).

As there are many individual considerations in relation to a Binding Financial Agreement, it is important to always seek legal advice when considering your options.

Our mediators act as a neutral third party assisting parties in reaching agreements. To remain impartial and unbiased throughout the mediation process, our mediators do not engage in legal practice or act as lawyers or provide legal advice in any way. Furthermore, Family Mediation Direct provides mediation services only. Family Mediation Direct is not a law firm, does not engage in legal practice, does not act as lawyers, and does not provide legal advice in any way.

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