Modern Australia encompasses a range of different relationships, including civil unions and marriages, with de facto relationships increasingly common. From the perspective of a financial settlement, the differences between married and de facto spouses is limited.
To have a claim for a property settlement at law in Australia, as a de facto party, under the Family Law Act 1975 (Cth), a party is required to establish that they and their partner have lived as a couple on a “genuine domestic basis” for 2 years cumulatively, or have a child together, or have made a ‘significant contribution’ to the other party. A marriage automatically gives rise to the jurisdiction of the Federal Circuit and Family Court of Australia (“the Court”).
The Court deals with issues of parenting and property settlement, maintenance and child support, in largely the same way between de facto parties and married couples. However, de facto couples have a 24 month time limit from the breakdown of the relationship to commence financial proceedings, whereas married couples have a 12 month time limit from the date on which the divorce order becomes final to commence financial proceedings, without requiring leave of the Court to institute proceedings.
Finally, it is noted that the definition of marriage was not extended when the Marriage Act 1961 (Cth) was amended to recognise marriages involving more than two adults, at law in Australia. However, from a family law perspective, a person may be married and in a de facto relationship contemporaneously, with both the married spouse and de facto spouse having potential rights at law in the event of a separation or separations.
If you need assistance with your family law matter, please contact our Family Law Team on 03 8600 9333.
