If you have separated, or are thinking of separating, from your de facto partner, it is important to understand the different ways the Family Law Act treats de facto relationships compared to married relationships.  

The key differences relate to the time limits for property settlement (i.e. the division of assets) and spousal maintenance (i.e whether you/your partner need to pay the other partner maintenance). 

Time limits for settlement and maintenance

If you are in a de facto relationship, you have two years after you and your partner separate to file an application for property settlement or de facto maintenance application. People who were married must file an application for property settlement, or for spousal maintenance within 12 months of the Divorce Order being granted.

You also need to prove that you lived with your de facto partner for at least two years before you separated, to satisfy a court under the Family Law Act that you were in a de facto relationship.

So what happens if you haven't filed the relevant applications in time or you haven't been living together for two years before separation?  As with many aspects of the law, there are exceptions to these rules.

How the court determines whether you were in a de facto relationship

The Family Law Act provides an outline of how the Court determines whether someone is in a de facto relationship. This includes considering:

    • the duration of the relationship;
    • the nature and extent of their common residence;
    • whether a sexual relationship exists;
    • the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
    • the ownership, use and acquisition of their property;
    • the degree of mutual commitment to a shared life;
    • whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
    • the care and support of children;
    • the reputation and public aspects of the relationship.

No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship. 

This means that even you have not been living together with your de facto partner for two years, you may still be considered to have been in a de facto relationship, once the Court has considered the circumstances above. 

What happens if you missed the deadline for issuing court proceedings?

If you have missed the deadline for issuing court proceedings, you still may be able to file for a property settlement or maintenance. This is commonly referred to as “proceeding out of time”.

  • The Court can allow an application for property settlement beyond the deadlines mentioned above, if hardship would be caused to a party or a child.
  • If you want to make a claim for maintenance beyond the deadlines mentioned above, you have to show that your circumstances were such that you would have been unable to support yourself without an income tested pension, allowance or benefit at the end of the standard application period.
  • Both parties can consent to issuing court proceedings or applying for Orders by Consent, out of time.

As you can see, this is all rather technical. 

It’s important that you get the right legal advice if you are thinking of separating, or have separated and are concerned about the deadlines for issuing court proceedings or whether you . The team of understanding, friendly Family Lawyers at Tonkin Legal Group are ready to help you, so give us a call on (03) 9435 9044 to book an appointment today.