Financial matters for separating non-married couples


Learn about Legislation dealing with financial matters for separating non-married couples

Until we have marriage equality in Australia, there are some differences in the way the courts deal with non - married and same sex couples to married couples when separating.


Commonwealth legislative changes:

March 2009: Amendments made to the Family Law Act (FLA) by providing most heterosexual and same-sex couples in Australia to have property and maintenance matters dealt with under the FLA, upon the breakdown of their relationship. 

How does Family Law Act define 'de facto'?

  • the persons are not legally married to each other
  • the persons are not related by family
  • having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis
  • a de facto relationship can exist even if one of the persons is legally married to someone else or is in another de facto relationship

What the court considers

  • the duration of the relationship
  • the nature and extent of common residence
  • whether a sexual relationship exists
  • the degree of financial  dependence or interdependence, and any arrangements for financial support, between the parties
  • the ownership, use and acquisition of their property
  • the degree of mutual commitment to a shared life
  • the care and support of the children
  • the reputation and public aspects of the relationship

NB: No single aspect is determinative or hold more weight.

Assuming de facto relationship can be proved, one of four requirements must also be satisfied:

  1. the period, or the total periods or the de facto relationship is at least 2 years;or
  2. there is a child of the de facto relationship; or
  3. a party applying for an order must have made 'substantial contributions' and a failure to make an order would result in 'serious injustice' to the applicant; or
  4. the relationship is, or was, registered in a State or Territory.


Other important points

  • generally, a financial application can only be brought in a de facto matter if the application is made within 2 years of the end of the de facto relationship. There are 2 exceptions-
  1.  Hardship would be caused to a party or child if leave were not granted; or
  2. for maintenance applications, at the end of the standard application period, a party would have been unable to support himself/herself without an income tested pension or benefit.


Other changes

  • From July 2009, a parent of a child in a same-sex relationship, which has broken down, can apply for child support from the other parent
  • Definition of 'step-parent' has been amended. Now a relationship of step-parent is created immediately if a relationship ( hetero-sexual or same-sex) is registered under State or Territory Law. An order can be made under the FLA for a step-parent to maintain a child, in some circumstances.

State legislative changes - (Victoria 2008)

  • the establishment of a Relationships Register
  • the availability of 'Relationship Agreements'
  • the adjustment of the property interests of de facto heterosexual or same-sex couples
  • court-ordered maintenance of a former de facto heterosexual or same -sex partner

(To find out more about Relationship Register, Relationship Agreements, the division of property and court ordered maintenance, visit your State or Territory Family Law Courts website).