Divorce & separation
Australian society has progressed quite far over the past few decades. Many years ago, separated de facto couples were treated differently at law from separated married couples.
Today, de facto couples in Australia are entitled to the same rights and claims at law as married couples.
Married couples are easily able to easily demonstrate that they are in a relationship together because they have a Marriage Certificate. However, it is not so quite straight forward for couples in a de facto relationship to prove they are in a relationship together.
In Western Australia, a de facto relationship is a relationship, other than a legal marriage, between 2 persons who live together, in a “marriage-like” relationship. It does not matter whether the persons are different sexes or the same sex. There are other complexities to consider too. For example, it is possible to be in multiple de facto relationships at the same time. Also, you could be married with someone while being in a de facto relationship with someone else at the same time.
If both partners agree that they are in a de facto relationship, there is no issue. However sometimes it can become an issue if one of the partners denies or disputes that they are or were in a de facto relationship. For example, one person may believe they are in a de facto relationship while the other person thinks they are only roommate or house mate.
Sometimes it is necessary to prove that a de facto relationship exists before the Family Court has jurisdiction to make any orders at all. You should be aware that Western Australia has a higher threshold to prove a de facto relationship exists than the rest of Australia.
Everyone’s personal circumstances are unique. As a result, there is no exact criteria for determining if two people are in a de facto relationship. The following factors are non-essential indicators of whether or not a de facto relationship exists between 2 persons, which needs to be assessed and balanced to determine whether a relationship is “marriage like” or “a marriage in all but name”:
(a) The length of the relationship between them;
(b) Whether the 2 persons have resided together;
(c) The nature and extent of common residence;
(d) Whether there is, or has been, a sexual relationship between them;
(e) The degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(f) The ownership, use and acquisition of their property (including property they own individually);
(g) The degree of mutual commitment by them to a shared life;
(h) Whether they care for and support children;
(i) The reputation, and public aspects, of the relationship between them.
Each element of a relationship draws its colour and its significance from the other indicators, some of which may point in one direction and some in the other. What met must be looked at is the full picture. Any attempt to isolate individual indicators and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error.
The judgment to be made is difficult. In any particular case, it will be a question of fact and degree. It may be that different decision-makers on the same facts could quite reasonably come up with different conclusions.
Once a de facto relationship has been established, one of the parties to the relationship can seek and obtain Court Orders about parenting, the division of property (assets, liabilities, and financial resources), maintenance, and child support.
Upon the ending of a de facto relationship, the Family Court of WA has the power to make an order altering the legal and equitable interests in the property of the separated couple. The Court may make a property order if satisfied of at least one of the following:
(a) There has been a de facto relationship between the partners for at least 2 years. The cohabitation period does not have to be a consecutive period of 2 years. The cohabitation period can consist of several time periods which cumulatively total 2 years when added together.
(b) There is a child of the de facto relationship who has not yet attained the age of 18 years and failure to make the order would result in serious injustice to the partner caring or responsible for the child. The wording “serious injustice” is important. An injustice is the opposite of justice and includes the concepts of a wrong or unfairness. The word serious in this context suggests weighty, grave or considerable. The Court will not interfere where there is simple injustice.
(c) The de facto partner who applies for the order made substantial contributions and failure to make the order would result in serious injustice to the partner. Substantial contributions means something more than usual or ordinary, and it applies to the more exceptional circumstances where a serious injustice may be caused. It will often be a matter of degree as to when an ordinary or normal contribution becomes a substantial one.
In summary, it is possible to seek a de facto property order from the Family Court if you lived together for at least two years, there is a child of the relationship, at least one third of your relationship was spent living in WA, or significant contributions were made by one partner and the failure to make an order would result in a serious injustice.
There does not have to be an agreement about a separation. If someone wishes to separate from their de facto partner, they can do so without any agreement or consent. The date of separation does not have to be agreed either. The date of separation is the day that one of the partners regarded the relationship as being over with no prospect of reconciliation. If there is a dispute, the same indicators used to determine if there is a de facto separation are used to determine a date of separation.
Ultimately, it will depend upon what you need. You may wish to protect your assets before or during a de facto relationship through a Binding Financial Agreement. You may wish to divide your property after a de facto relationship has ended by negotiating a Binding Financial Agreement or Form 11 Application for Consent Orders. You may wish to establish care arrangements for your children through a Parenting Plan or Consent Orders. You may wish to prevent any of your property being divided at all because there was no de facto relationship, or a division would not be just and equitable or “fair”.
There are many possibilities, pitfalls, and potential outcomes. We can advise you about your entitlements based on your particular personal circumstances. We can also advise you about what is an appropriate outcome to resolve your situation. You can then decide if it is worthwhile to seek and obtain a Court Order about your relationship through negotiation, mediation, or litigation at the Family Court of WA.
Whatever path you choose, please be aware that you only have two years from the date of final separation to file an application at the Family Court of WA seeking orders for the alteration of property interests or the payment of maintenance. If you do not commence proceedings within that timeframe, you will be “out of time” and must first seek permission from the Family Court of WA before being able to obtain an order about property division or maintenance payments.
If you have any questions about de facto relationships or would like to discuss your individual personal circumstances regarding a separation, please feel welcome to contact one of our family lawyers by emailing us at [email protected] or calling 08 6141 3227.