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A de facto relationship is a relationship that two people who are not married or related by family have as a couple living together on a ‘genuine domestic basis’.

Parties to a de facto relationship which has broken down can apply to the Family Court to the Federal Circuit Court to have financial matters determined in the same way as married couples. Parties must apply for de facto financial orders within 2 years of the breakdown, otherwise parties will need the Court’s permission to apply.

If the de facto relationship was less than two years long the Court may have no jurisdiction under the Family Law Act to provide a property settlement. There may be alternate remedies available or a basis other than the two year requirement to show that a de facto relationship existed.

Court can make financial orders regarding de facto relationships if satisfied of one of the following:

• The period (or total of the periods) of the de facto relationship is at least two years
• There is a child of the de facto relationship
• One of the partners made substantial or non-financial contributions to the property or as a homemaker or parent and serious injustice to that partner would result if the order was not made
• The de facto relationship has been registered in a State or Territory

Divorce is the legal ending of a marriage. Parties can make arrangements for property and children without being divorced but staying married can affect their rights, their financial responsibilities and their Wills.

To apply for a divorce, the applicant must complete an Application for Divorce (sole application or joint application) and file it with the Court. The date of separation is recorded on the Application for Divorce and is sworn or affirmed to be true and correct.

The applicant will need to satisfy the Court that the parties have lived separately and apart for at least 12 months before filing the Application for Divorce and that there is no reasonable likelihood of resuming married life. It is possible to live together in the same home and still be separation

If the applicants/the parties cannot prove that they have been separated for at least 12 months before filing the Application for Divorce, a divorce will not be granted by the Court.

Separation can take place under one roof. See Family Law Court ‘Separation under one roof’ section.

To determine where a separation has taken place, the Court will examine a number of different factors including:

• Change in sleeping arrangements
• Reduction in shared activities or family outings
• Decline in performing household duties for each other
• Division of finances
• Any other matters that show the marriage has broken down

Your Affidavit (sworn statement) to the Court should also explain:

• Why you continued to live in the same home following separation and what intention, if any, you have of changing the situation
• Living arrangements you made for any child of the marriage under 18 years during the time you were living under one roof
• What Government departments you have advised of your separation if you receive government benefit (e.g. Centerlink, Department of Human Services etc.)