Defacto Law FAQ's
December 2002: New De
Facto Relationship Laws in Western Australia
The new law and its effect on
The Family Court
Amendment Bill introduced in the WA Parliament in
September 2001, came into law on 1
December 2002. It
gives de facto couples substantially the same rights and
remedies as married couples, enforceable through the
Family Court of Western Australia.
provides de facto couples with legal rights in relation
to property and maintenance. The legislation brings Western
into line with other States, with the notable exception
that the jurisdiction to deal with these matters will be
vested in the Family Court of Western Australia rather
than the State Supreme Courts, as is the case elsewhere.
Previously, de facto couples needed
to argue their cases before the Supreme Court employing
equitable principles which was often very complicated,
costly, time consuming and public. However the current
legislation now allows de facto couples to use the
Family Court to resolve their property disputes using
the same procedures as have been available to married
couples since 1975.
Definition of a de facto relationship
under the new law
A de facto relationship is defined as
a relationship between two persons who have lived
together in a marriage-like relationship. There are a
number of factors that are to be used as indicators to
determine whether a de facto relationship exists or has
existed. These include:
the length of the relationship;
living together and sexual relationship;
the degree of financial dependence or independence;
arrangements for financial support;
the way property is owned, used or acquired; and
care for and support of a child or children of the
In addition, the new legislation
recognises de facto spouses both in opposite and
Other issues dealt with under the new
Recognition of a de facto
relationship applies only if either or both partners are
over 18 years of age. However, a de facto relationship
may be acknowledged where both partners are over 16
years if the Court finds that the circumstances of the
relationship are so exceptional and unusual to justify
the application of the new law.
To ensure a sufficient connection to Western
one or both of the parties must be resident in Western
the day the application for relief is made. Further,
both parties must have resided in Western
at least one-third of the duration of the relationship,
or the person seeking relief must have made defined
substantial financial contributions within the State.
new laws do not apply to de facto relationships that
ended prior to 1
There is a one year time limit in
which to file an application, commencing from the date
of the end of the de facto relationship. The Court may,
in some circumstances, extend this time.
De Facto Relationship Law in WA Before 1
Prior to the enactment of the new
laws, Western Australians did not have any specific de
facto relationships law as existed in most other
The laws in WA for relationships
which ended prior to December 2002 are based on
equitable principles which are enforced in the Supreme
Court of WA.
Property distribution under the
In WA property distribution on the
breakdown of earlier de facto relationship is done
according to legal status, contract and equitable
principles of law.
If property is legally registered in
the name of one person, then the Courts will not
normally intervene to give the other party any interest
or share in that property.
If property has been acquired during
a de facto relationship, the person who paid for it will
generally be the one who retains it after the
relationship has broken down.
Where a contractual agreement as to
property division exists between parties their intention
will normally be given effect by the Courts. That
intention can be inferred or implied from the parties
conduct in some circumstances but it is obviously better
to have an agreement in writing to remove any doubt.
In some circumstances, equitable
principles may be applied to protect a party where it
would be unconscionable for the other to retain property
simply because he/she has legal title. Various types of
trust can be created whereby a property (or an
interest in property) may be in one persons name as
trustee for the other. This is a complex area of law
and you should seek legal advice regarding its
applications in specific circumstances.
Children of de facto
relationships in Western
of a de facto marriage are treated in much the same way
as in all other States. Disputes over arrangements for
children of a de facto relationship are dealt with in
the Family Court of Western Australia and the laws
applied are effectively the same as those for children
of a marriage.
There are some
technical differences which relate to the fact that Western
not agreed to allow the Commonwealth to make laws in
relation to children of de facto relationships but,
now passed legislation effectively adopting the
Commonwealth laws, the result is the same.
Child support obligations are also the
same for children of de facto relationships in Western
they are for children of marriages. So, if you have
children, you will still be required to support them
under the child support scheme even though you are not
Paternity tests can be ordered by the Family Court to
determine who are the parents of children whether you
are (or were) in a de facto relationship, married or not
in a relationship at all. As a result of these tests
(or inferences drawn as a result of your refusal to take
them), you can be declared to be the father of a child
and ordered to pay child support.
more info here..