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De-facto relationship in Australia

Are you in a de facto relationship in Western Australia?

 In WA the Family Court has the power to alter property interests (as with married couples) if it is satisfied that the two people have live in a “marriage like” relationship for at least 2 years.

This is essentially the threshold to any de facto property case for the purposes of family court proceedings in WA.

In addition to meeting this criteria the Family Court Act 1997 (WA) sets out at s.205X that in order to bring an application for a property settlement following the breakdown of a de facto relationship then you need to ensure to satisfy the following

  1. You or your former spouse are residing in WA on the day you or they make the application; and
  2. You or your former spouse have lived in WA for at least one third of your relationship; or
  3. Substantial contributions have been made if you do not satisfy the previous numbered paragraph.

There is an important decision of the former Chief Judge Thackray’s that sets out the differences between living with someone and being in a de facto relationship and this can be located at Truman and Clifton [2010] FCWA 91, here is a link to that case Truman & Clifton [2010] FCWA 91 – BarNet Jade – BarNet Jade

There is also the issue that in some cases even if you have been in a de facto relationship the court might not actually make any orders to alter property interests. In a recent Full Court decision this occurred in Chancellor and McCovy [2016] FamCAFC 256 – here is a link to that case too Chancellor & McCoy [2016] FamCAFC 256 – BarNet Jade – BarNet Jade.

In short there are 2 real issues with a de facto property settlement, being

  1. Is there a de facto relationship to begin with; and
  2. If there is a de facto relationship, should the court alter property interests.

You should be aware that even if you satisfy the firth hurdle, you may struggle on the second. This will not assist with what you are seeking to do (presumably).

If you are not sure if you are in a de facto relationship or what you entitlements in a property division might be following the relationship breakdown please get in touch with us and one of our lawyers will assist you.