A de-facto relationship is one where two people are living together as a couple on a genuine domestic basis.

De facto relationships can be between heterosexual or same sex couples.

If the existence of a de facto relationship is in issue, the court will have regard to the following factors:

  • The duration of the relationship;
  • The nature and extent of their common residence;
  • Whether a sexual relationship exists;
  • The degree of financial dependence or interdependence, and any arrangements for financial support, between them;
  • The ownership, use and acquisition of their property;
  • The degree of mutual commitment to a shared life;
  • Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
  • The care and support of children; and
  • The reputation and public aspects of the relationship.

No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether people are in a de facto relationship. The court will weigh up all of the evidence and determine whether on the balance of probability the de facto relationship exists.

For people in de facto relationships separating after 2009, in most Australia states including Queensland, de facto couples enjoy practically the same rights as married couples to property adjustment orders and spousal maintenance.

In addition to there being a de facto relationship, in order to bring an application for de facto property adjustment/spousal maintenance one of the following criteria must also be met:

  • The relationship is of 2 years duration; or
  • There are children of the de facto relationship; or
  • Where there have been significant contributions made and a serious injustice would result if the court did not make an order or declaration.

Currently in Queensland there are 3 different types of de facto relationship property adjustment regimes depending on when separation occurred. These are:

  • For de facto couples who separated pre 1999, an Application can be made utilising equitable doctrines in the State Courts;
  • For de facto couples who separated between 1999 and 1 March 2009, an Application can be made pursuant to Part 19 Property Law Act 1974 in the State Courts;
  • For de facto couples who separated after 1 March 2009, an Application can be made pursuant to the Family Law Act 1975 in the Family Court or Federal Circuit Court.

However for de facto couples who separated before 1 March 2009, the parties can submit to the jurisdiction of the Family Court or Federal Circuit Court pursuant to s 86A of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008.

The methods by which de facto matters can be resolved are similar to those available for married couples including court orders, binding financial agreements, recognised separation agreements and consent orders.

An application for a de-facto property or spousal maintenance claim must be brought within 2 years from the date of separation. If this limitation period expires you may be required to establish “hardship” and seek the permission of the court before bringing your application.

Whether you are part of a heterosexual or same sex couple, if you separate we recommend you attend upon Peter Hooper, family lawyer Brisbane, for advice with respect to your rights.