A defacto relationship is defined by section 13A of the Interpretation Act 1984 (WA) as a “marriage-like” relationship. In practical terms, this can be a very broad definition. In determining whether a de-facto relationship exists the Family Court may consider any of the following factors:
- The length of the relationship;
- Whether the parties lived in the same home;
- The nature and extent of the parties common existence;
- Whether a sexual relationship exists or existed;
- The level of financial dependence or interdependence;
- The ownership, use and purchase of property;
- The degree of mutual commitment to a shared life;
- Whether the parties care for and support children; and
- The reputation and perception of the relationship by others.
The definition of defacto relationships is inclusive of same sex relationships.
The Family Court may also recognise instances where one party is in more than one defacto relationship at a time or circumstances whereby one party is married and in a defacto relationship concurrently.
Proceedings in the Family Court
Under section 205Z of the Family Court Act 1997 (WA) the Family Court may make orders in relation to financial and parenting matters in defacto relationships when:
- There has been a de-facto relationship between the partners for at least 2 years; or
- 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; or
- The defacto partner who applies for the order made substantial contributions of a kind mentioned in section 205ZG(4)(a),(b) or (c).
It is important to remember that when considering commencing proceedings in the Family Court of Western Australia:
- At least one third of the defacto relationship must have occurred in Western Australia; or
- Substantial contributions have been made in Western Australia; and
- At least one defacto partner resides in Western Australia on the day the application is filed.
Following the breakdown of a defacto relationship a party may apply for an adjustment of property interests under section 90M of the Family Court Act 1997 (WA), provided the above criteria has been met. The general approach taken to dividing the parties assets and liabilities is the four step approach:
Step 1: Determining the asset pool. This includes a consideration of jointly and individually owned assets and liabilities.
Step 2: Assessing the contributions made by each party to the asset pool. This includes financial contributions, non-financial contributions and contributions as a parent and homemaker.
Step 3: A consideration of whether there ought to be any adjustment in favour of either party on the basis of their future needs. These factors include the age, health and income of the parties.
Step 4: Will the proposed orders be just and equitable to both parties?
Parties wishing to apply for property settlement orders have a period of two years from the date of separation in which to commence proceedings in the Family Court. There are some circumstances when it may be possible to apply to the Family Court for leave to commence proceedings out of time. We recommend obtaining legal advice in the event this is applicable to you.
When married couples separate superannuation is considered an asset of the relationship and in some circumstances a superannuation splitting order is made. This means that a portion of one party’s superannuation is rolled over into their spouses’ superannuation fund.
In Western Australia superannuation entitlements of defacto partners are considered a financial resource and are not able to be subject to a superannuation splitting order. This can create significant difficulties in dividing assets in defacto relationships, particularly in circumstances whereby the primary or secondary asset is superannuation entitlements or where one party ceased paid employment to care for the parties’ children thereby failing to accrue superannuation entitlements for lengthy periods.
There has been some discussion in recent weeks for there to be amendments to the Family Court Act 1997 (WA) to provide for the possibility of superannuation splitting orders to be granted in defacto relationship separations. With the number of defacto relationships on the rise and the significant decrease in the property market it comes as little surprise that Western Australians are seeking this change.
The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.