Eales & Mackenzie has wide experience in dealing with defacto and same sex partnerships.

Since 1 July 2010, people who are not legally married but who are living in a de facto relationship (including a same-sex relationship) can make an application for property settlement or spousal maintenance under the Family Law Act 1975.

Under the Family Law Act 1975 an application can only be made for the court to resolve a property dispute or for spousal maintenance if:

  • the relationship existed for at least two years, or
  • there is a child of the partners, or
  • one of the partners has made substantial financial or non-financial contributions to property as homemaker or parent and serious injustice would result if an order was not made.

An application for property settlement must be made within two years of the relationship ending, but in exceptional circumstances the court may grant leave to make an application outside this time period.

The court will decide how property should be divided based on the same basis as is used for married couples.

Financial Agreements

A de facto couple living or intending to live together can draw up an agreement saying how their property and financial resources will be divided should the relationship end. The agreement can also deal with spousal maintenance and matters incidental to the division of property and financial resources. Part VIIIAB financial agreements can also be made after the relationship has ended.

To be enforceable, agreements must be in writing and signed by both partners, and each partner must have had independent legal advice and each partner’s lawyer must have signed the agreement to say this.

A court may set aside or vary an agreement in very limited circumstances, for example if there has not been full disclosure, or there has been fraud or duress, or there has been a significant change in circumstances relating to a child of the relationship such that hardship would be caused if the agreement was not set aside.

If a de facto relationship breaks down after 1 July 2010 and the couple had made a certified domestic partnership agreement under Victorian law that was in force before 1 July 2010, then that agreement may be taken to be a Part VIIIAB financial agreement and therefore enforceable by the Family Court. However, the only parts of the agreement that could be enforced by the Family Court are those to do with the property and financial resources of the parties, and spousal maintenance.