Generally speaking a person who has been living with another person in a genuine domestic relationship for 2 years will be able to make a claim for property settlement.
There are exceptions to the requirement of cohabitation for 2 years. If a person has lived with another person in a genuine domestic relationship (even if that was for less than 2 years) that person can apply for a property settlement if:
- there is a child of their relationship; or
- the person has made a significant contribution to the property of the other party and failure to make an order adjusting the property in favour of them would result in a serious injustice; or
- the relationship has been registered under the law of the State (if the couple separated after March 2009) the claim can be made under the Family Law Act .
Even if the above does not apply, there may be other circumstances that apply which enable a person to seek a property settlement under the Property Law Act or at common law.
As to “what is a defacto relationship ” the factors which might be taken into account include whether there has been a sexual relationship, merging of funds, a recognition of the couple by others as in a genuine domestic relationship, a life lived with a community of purpose and other factors. It largely depends on the facts of each case.
Any court application must be made within 2 years of the separation.
If a couple separated after March 2009, there may also be a claim for spousal maintenance.
Any person in an existing defacto relationship or intending to enter one should consider obtaining advice about the force and effect of a financial agreement on their future estate planning.
