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In modern relationships it can often be difficult to pin down whether two people are “de facto” or whether they are together on a more casual basis.

If a de facto relationship exists, and if certain other criteria are met, a person can make a claim in the Family Court for a property division and potentially spousal maintenance.

It is for the Court to determine whether a de facto relationship exists. In WA, a de facto relationship is defined as a relationship (other than a marriage) between two persons who live in a marriage-like relationship. The question then becomes, what is a marriage-like relationship?

When answering this question, the Court considers a variety of factors, including:

  • the length of the relationship (i.e. the longer the relationship, the more likely it will be a de facto relationship);
  • whether the two people have lived in the same property;
  • the nature and extent of common residence;
  • whether there is, or has been, a sexual relationship between the two people;
  • the degree of financial dependence or interdependence (e.g. whether or not the two people keep separate finances);
  • whether the two people share property or own or have purchased property together;
  • the degree of mutual commitment to a shared life;
  • whether the two people care for and support children; and
  • the reputation, and public aspects, of the relationship between the two people (e.g. if they are a ‘couple’ to the outside world).

For instance, in the case of Regan & Walsh [2014] FCCA 2535 the parties acknowledged that they knew each other from 2005 and shared a residence on various occasions. The applicant argued that the parties were in a de facto relationship whereas the respondent had the perspective that it was a “situation of friends with benefits”, a situation of friends having a sexual relationship at different times rather than a de facto relationship.

The Court in this instance found that there was no de facto relationship, as there were no arrangements or agreements between the parties for financial support, there was no joint ownership or acquisition of property and there was little evidence to support a conclusion that there was a mutual commitment to a shared life.

Although the above case was determined in the Eastern States (where the law as to what constitutes a de facto relationship is slightly different), it illustrates the factors the Court will take into account when determining if a de facto relationship exists.

If a de facto relationship is established, to commence a claim in the Family Court certain additional criteria will need to be satisfied. These are as follows:

  • that there has been a de facto relationship for at least two years, or
  • that there has been a de facto relationship for less than least two years, but:
    • there is a child of the relationship under the age of 18 years and failure to make orders would result in serious injustice to the party who is caring or responsible for the child; or
    • the partner applying for the order has made substantial financial, non-financial or homemaker/parent contributions and failing to make orders would result in serious injustice.

To commence a claim in WA, one of the following will also need to be established:

  • that both people resided in WA for at least one third of the period of the de facto relationship; or
  • that substantial financial, non-financial or homemaker/parent contributions have been made by one of the parties while residing in Western Australia.

The proceedings must be commenced within two years following the date of separation. If a person attempts to commence proceedings after this time they will require the leave of the Court, which is not always granted.

If the above can be established, a person will be able to seek a property division and potentially, spousal maintenance orders in the Family Court.

If you, a friend or family member are going through a separation and are looking to divide your property, we highly recommend seeking legal advice before progressing your case. Please do not hesitate to contact Lynn & Brown Lawyers for expert advice and assistance on 9375 3411 to make an appointment.



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