Section 39A of the Family Law Act (FLA) discusses a de facto financial cause. This means that ex-de facto couples can deal with their property and financial matters the same way as married couples. However, this only applies to all states except Western Australia.
Section 39A Family Law Act: De Facto Relationship
Two people are in a de facto relationship if they are:
- A couple living together on a genuine domestic basis;
- Not legally married to each other
- Not related by family
The reformed FLA also clearly states that same-sex couples can be in a de facto relationship. This includes two people of different sexes. Additionally, this relationship can also exist where one person is married to someone else, or in another de facto relationship. Here are the circumstances indicative of a de facto relationship:
- Duration of the relationship
- Nature and extent of the common residence
- Degree of financial dependence or independence
- Any arrangements for financial support between the couple
- Ownership, use, and acquisition of the couple’s property
- Degree of mutual commitment to a shared life
- Whether a prescribed law of a state or territory registers the relationship
- Care and support for children
- Reputation and public aspects of the relationship
Property And Assets Of De Facto Partners
Property or assets of the de facto partners (whether in both or either party’s name) may include:
- Real estate;
- Funds in accounts with banks or other financial institutions;
- Interests in businesses/companies and trusts;
- Vested interests in estates and;
- Household chattels (a tangible moveable or immovable item other than real estate)
Property also includes superannuation assets. On the other hand, liabilities include mortgages, business or personal loans, hire-purchase or lease agreements, credit card debt, and other personal debt.
According to Section 39A of the Family Law Act, a de facto financial cause may be instituted in:
- The Federal Circuit and Family Court of Australia;
- The Supreme Court of the Northern Territory of Australia or;
- A court of summary jurisdiction of a participating jurisdiction
However, in the case of proceedings between de facto partners, one must be at least a/an:
- Australian citizen
- Ordinarily residents in Australia
Additionally, case proceedings between de facto partners require them to be present if the proceedings were filed in a court. Finally, de facto partners are required to be present on the day on which the application instituting the proceedings is made.
Section 39A Family Law Act: Establishing A De Facto Relationship Case Study
Gissing & Sheffield had been in a relationship for 17 years. During this time, they had lived in several properties, both together and separately. They had shared common residences for significant periods of time.
The couple’s financial relationship remained until a separation involved a very high degree of financial dependence by the female partner. Moreover, there was also interdependence between the two parties. The couple held joint bank accounts and intermingled their finances.
During their relationship, the couple bought and sold several homes together. Despite the fact that only one person’s name was on the title, combined finances were used in the transactions. The couple’s relationship demonstrated a level of dedication to a shared existence.
This included the couple “carrying a mutually shared income and payment of costs for their mutual support.” The exact nature of the sexual relationship of the parties was unclear evidence. However, the court accepted there were sexual relations between the couple.
In this example, the male partner presented contradictory statements to Centrelink. Centrelink provides social security payments and services to Australian who need financial support. Nonetheless, these representations did not mean that it was not a de facto relationship. In conclusion, a de facto relationship was successfully established.
Importance Of Seeking Legal Advice
De facto relationships can complicate property divisions and financial matters. That’s why JB Solicitors can help in defining a de facto couple’s assets, liabilities, and financial arrangements.
Reach out to JB Solicitors today