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Family Law and De Facto Relationships

The legislation that determines property and parenting related matters for de facto relationships in Western Australia is the Family Court Act 1997. De facto matters include both heterosexual and same-sex relationships. 

If you fall within the requirements that define a de facto relationship as stated below, then it may be necessary for you to consider the necessity to address property settlement related matters.

For property related matters, there is a two year Application  Period from the date of separation, beyond which you must seek leave of the Court to commence proceedings if matters cannot be agreed by consent.  Specific circumstances and/or hardship must be established to be successful in being granted leave.

The process for dividing property between de facto parties is very similar to the process applied to married parties (see Property Settlement).

On 3 December 2020, the Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2020 was passed,  providing the ability for superannuation entitlements to be transferred between separated de facto couples for the purpose of property settlement.

This legislation awaits commencement by Proclamation, which we anticipate to be in the short term.

For parenting matters, de facto legislation also applies the same principle (i.e., best interests of the child), and primary and additional considerations when making parenting orders (See Parenting Matters).

Important Information to Know
  • De Facto partners can only make application for property orders or maintenance if they separated after 1 December 2002.
  • De facto partners can generally only make application for property orders within two years of the date of separation, but there are other qualifying circumstances which can be explained by our professional team at Dimond Family Lawyers.
How do I know if my relationship was a “de facto relationship”?

The following requirements must be satisfied to confirm the existence of a de facto relationship:

  1. That you have lived in a de facto relationship with the other party for at least two years; or
  2. That you have lived in a de facto relationship for less than two years but:
    • There is a child of the relationship (under 18 years) and failure to make the order sought would result in serious injustice to the party caring or responsible for the children; or
    • The partner applying for the order has made substantial financial, non-financial or homemaker/parent contributions (whilst resident in Western Australia) and failure to make the order would result in serious injustice;
  3. That you and your partner resided in Western Australia for at least one third of the total duration of the relationship.

Our experienced professional team are able to advise you of the appropriate strategy for your specific circumstances to provide you with the most time and cost-effective approach.

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