Many States, New South Wales included, conferred their power to make laws concerning de facto relationships to the Family Law Act.
The Family Law Act allows couples who have:
- been in a de facto relationship;
- lived in a participating jurisdiction such as New South Wales for two years or more; and
- have not been separated for more than two years.
to bring a claim in the Family Court or the Federal Circuit Court of Australia for a property settlement.
De facto couples can also apply for parenting orders and child support and are also eligible persons under the Succession Act 2006 to bring a family provision claim upon the death of the other.
The fact that you may be eligible to bring a claim under the Family Law Act does not automatically mean you will be successful in that claim. It is important that you obtain specific legal advice about settlement options and the range of outcomes, costs and risks you face in commencing Court proceedings.
Property applications that can be made, include property applications to divide property and maintenance whereby one de facto partner pays monies to the other by way of ongoing support or maintenance.
De facto couples have two years to bring a claim for the division of property or maintenance.
Separation requires that the couple no longer live together as a de facto couple. Consequently, they would, if one of them chose to separate from the other, communicate their intention and act on it. For example, moving out of the home, informing family and friends, working towards separating finances, obtaining legal advice etc.
As the two year time limit for de facto couples commences from the date of separation, it is sensible to carefully document that date as disputes may arise later about the date of separation. This is particularly the case as separated couples edge closer toward the two year time limit.
You could consider a letter from your solicitor to your former partner confirming that you have separated. Alternatively, you could send an email or letter confirming separation or, both of you might sign a document to confirm that as of a particular date, your de facto relationship has come to an end and you both consider yourselves separated.
Keep that document in a safe place in case there is a dispute down the track as to the date of separation.
In Australia, there is no requirement to justify or give reasons for separation.