There are some differences between a marriage and de facto relationship. Moreover, de facto separation in WA is much like a separation between married couples. We will look at these differences in this article.
Importantly, the definition of “de facto relationship” is different in Western Australia, as compared to other jurisdictions. A de facto relationship in WA is considered to be a “marriage-like” relationship between two people (can include same sex couples) for a minimum period of 2 years.
On the other hand, other jurisdictions consider Family Law Act’s (1975) definition of a de facto relationship. Section 4AA of the Act defines a de facto relationship as parties are in a de facto relationship if:
- De facto partner are not married to each other;
- Are not related to each other;
- Have a relationship as a couple living together on a genuine domestic basis
On the other hand, the Family Court Act (1997) of Western Australia does not define a de facto relationship. However, a definition is given in the Interpretations Act 1984. This definition is largely similar to the definition in the Family Law Act (1975).
De Facto Separation WA: What Is a de Facto Relationship?
A de facto relationship in WA exists between who live together on a “genuine domestic basis, but are unmarried. Moreover, both same-sex and opposite-sex couples can be in a de facto relationship.
Two people cannot be in a de facto relationship if they are related to each other. Before we outline points related to de facto separation in WA, let’s look at the factors that indicate whether or not two parties are in a de facto relationship with each other.
Given below is a list of factors to consider:
- Length of the relationship
- Nature and extent of their common residence
- Whether the parties have resided together
- Degree of financial dependence, or financial interdependence and if there’s any financial support arrangements between the two parties
- Whether there is, or has been a sexual relationship between the two parties
- Degree of mutual commitment to live a shared life
- Ownership, acquisition and use of property – including property that they own individually
- If they care for children, and support any children of the relationship
- Public aspects of the relationship – what their friends and family think about the relationship
Notably, the Family Court Act (1997) gives legal rights to parties after de facto separation in WA with regards to parenting disputes, property settlement and financial maintenance.
De Facto Separation WA: Entitlements
In Western Australia, the Family Court Act (1997) provides avenues for de facto couples who have recently separated. Of course, parties are capable of reaching a financial agreement by themselves.
However, in the case that they cannot agree on property settlement, the Family Court of Western Australia can make a decision regarding entitlements after de facto separation in WA. The de facto couples will need to provide evidence that a de facto relationship exists. They also need to show connection to Western Australia.
According to the Family Court Act (1997), the family court can make a de facto property settlement order in WA if the de facto relationship:
- Lasted for at least 2 years; or
- Was shorter than 2 years, but the former spouses have a child together who is under 18 years of age and if the family court does not make fair property orders, it will be a serious injustice for the primary carer of that child;
- Was shorter than 2 years, but the party asking for property orders has made significant financial contributions to the property pool, and if the court does not make fair property orders, that party will suffer serious injustice.
Family Court Time Limit
According to Section 205ZB of the Family Court Act (1997) de facto couples whose de facto relationship has ended can only apply for financial orders within 2 years from the date of separation.
Notably, as a difference between the Family Law Act (1975) and the Family Court Act (1997), the latter provides the Court the powers to make maintenance orders even if there is no “separation’ between the couple.
The Court can make orders if it deems it to be proper for the maintenance of one of the parties. In contrast, the Family Law Act (1975) requires a breakdown of the de facto relationship for the Court to make such maintenance orders.
Parenting Matters And De Facto Separation
The Family Court Act (1997) also determines parenting matters for de facto relationships in Western Australia. As with most family law matters, children’s best interests take priority in parenting matters after de facto separation in WA.
This means that Courts will give paramount consideration to the children’s needs, and make orders that ensure their development, well-being and welfare.
Parties can either prepare parenting plans by coming to mutual agreements, or apply for parenting orders. When approaching the Court, parties need to show evidence of their relationship.
Family Law Advice for de Facto Relationships
For long there have been misconceptions that de facto couples do not have the same rights as those who have gotten a divorce after marriage. As we have explored, they have the same rights and entitlements with regards to property settlement, parenting and maintenance matters.
If you are seeking legal advice for property settlement, financial agreement or parenting matters, get in touch with our team of experts today. Here at JB Solicitors, we have an award-winning team of family law solicitors who are passionate about helping our clients get their desired outcomes.
Contact JB Solicitors for more information.