Two year time requirement - property disputes

Property disputes and spousal maintenance

In the area of property disputes and spousal maintenance on the breakdown of a relationship, a de facto relationship must generally have existed for two years or there must be a child of the relationship before the relationship is recognised and a claim for property settlement can be made to the court. (If the former partners have made or make a binding financial agreement under Part VIIIAB Family Law Act 1975, there is no time period for which the relationship must have existed before the agreement can be enforced - see Dividing property and Coming to an agreement.)

Applicable law

De facto relationship property disputes and claims for spousal maintenance are covered by the Family Law Act 1975 (Cth). Prior to 1 July 2010, South Australian law covered these disputes.

In some cases, there may be doubt about whether the old State law still applies, or whether the Family Law Act 1975 (Cth) applies. For example:

  • What happens if I have an agreement under the old State law?
  • What happens if we broke up before 1 July 2010?

The scenarios at the bottom of the page explain which law applies during the transition phase.

What is a de facto relationship under the Family Law Act 1975?

Under the Family Law Act 1975 (Cth) a de facto relationship is one where the couple are not legally married to one another, are not related by family, and where they live together on a genuine domestic basis [s 4AA]. Same sex relationships are included in this definition [s4AA(5)(a)].

A de facto relationship can also be recognised where one of the persons in the relationship is legally married to another or is in another de facto relationship [s4AA(5)(b)].

What factors does the Court consider in determining if a de facto relationship existed? [s 4AA(2)]

  • the duration of the relationship
  • the nature and extent of a common residence
  • whether a sexual relationship exists
  • the degree of financial dependence or interdependence between the couple and any arrangements for financial support between them
  • the ownership, acquisition and use of their property
  • degree of mutual commitment to a shared life
  • whether the relationship is or was registered under a law of a state or territory as a prescribed kind of relationship (there is no provision for this sort of registration in South Australia)
  • the care and support of children
  • public aspects and reputation of the relationship.

None of these factors is a necessary requirement [s4AA(3)].

Other factors may also be taken into account (s4AA(4)].

See Jonah & White[2011]FamCA 221 for an example where a de facto relationship was found not to exist (go to Summary).

Conditions that must be met before an application for property settlement can be made [s 90SB and s 90SD and/or s 90SK]

Relationship conditions [s 90SB]

One of the following conditions must exist:                     

  • the relationship must have existed for a period of at least 2 years (this can include more than one period providing it totals at least 2 years), or
  • there is a child of the relationship, or
  • one of the partners has made substantial financial or non-financial contributions to their property or as homemaker or parent, and serious injustice would result to that partner if an order was not made (that is, the 2 year requirement can be waived), or
  • the de facto relationship has been registered in a State or Territory under laws for the registration of relationships (there is no provision for this sort of registration in South Australia).

Geographical requirements [s90SD and/or s90SK]

Certain geographical requirements must also be met in order to make an application for de facto property settlement in the Family Court. The question of geographical requirements will only be an issue if the parties have lived in Western Australia.

Time limit for making an application

An application for de facto property settlement must normally be made within 2 years of the end of the relationship [s44 (5) Family Law Act 1975]. An application may be made after this time if the court is satisfied under s44 (6):

  • hardship would be caused to the party or a child if leave were not granted, or
  • if the application is for maintenance, that, at the end of the standard two year application period, the person is unable to support themselves without an income tested pension, allowance or benefit.

What can be dealt with in a property settlement?

De facto couples can make claims under the Family Law Act 1975 (Cth) for:

An application for property settlement or spousal maintenance can be made to either the Family Court or the Federal Circuit Court (see Which court?).

Stamp Duty

Stamp duty is not payable on an agreement made under the Family Law Act, or any transfer of property or motor vehicle between former de facto partners pursuant to a Family Law agreement or Family Court order [see Stamp Duties Act 1923 s71CA].

SCENARIOS

Deciding whether the Family Law Act applies or State law applies

Following the referral of State powers over de facto property law to the Commonwealth, there is a transition phase when some cases will still be dealt with under State law.

Scenario 1

  • breakdown on or after 1 July 2010
  • no financial agreement under the Domestic Partners Property Act 1996 (SA)
  • relationship conditions [s90SB] satisfied
  • geographical requirements [s90SD  and/or s90SK] met
  • by 2012 you will need to worry about 2 year limitation period

Pt VIIIAB  Family Law Act 1975 applies. That is, an application for property settlement can only be made to the Family Court.

 

 

Scenario 2

 

  • breakdown on or after 1 July 2010
  • a certified agreement under the Domestic Partners Property Act 1996 made before 1 July 2010 exists
  • relationship conditions [s90SB] satisfied
  • geographical requirements [s90SD  and/or s90SK] met
  • by 2012 you will need to worry about 2 year limitation period

The agreement is a Pt VIIIAB financial agreement to the extent the agreement deals with property, financial resources, maintenance and incidental or ancillary matters. That is, the agreement can be enforced in the Family Court (and not a State court).

 

  

Scenario 3

  • on or after 1 July 2010
  • two people wish to make a financial agreement:
    - in contemplation of entering a de facto relationship, or
    - during a de facto relationship, or
    - after the breakdown of a de facto relationship (2 year limitation period)

Pt VIIIAB  Family Law Act 1975 applies.  That is, to be enforceable, the financial agreement must comply with the Family Law Act.

 

  

Scenario 4

  • breakdown before 1 July 2010
  • relationship conditions [s90SB] satisfied
  • geographical requirements [s90SD  and/or s90SK] met

AND

- no order (apart from an interim order) has been made re property or maintenance

- no certified domestic partnership agreement is in force

- if there was a certified domestic partnership agreement and it has ceased to have effect, no property has been distributed or any maintenance paid under it

THEN:  'opting in' is possible. That is, you may choose to go to the Family Court rather than the State courts to arrange your de facto property settlement. Be aware of the 2 year limitation period.

If opting in is possible, you will need to see a private solicitor to ascertain whether it is desirable.  The Family Law Act 1975 also requires that you see a private solicitor before you opt in.

If opting in is not desirable, that is, if you choose not to use the Family Court although it is possible, then State law applies.

Note that:

  • opting in must be an unconditional choice
  • the choice to opt in is irrevocable
  • both parties must choose to opt in
  • the choice must be in writing
  • independent legal advice must be obtained and certified.

Scenario 5

  • breakdown before 1 July 2010

AND

  • an order (apart from an interim order) has been made re property or maintenance, or
  • a certified domestic partnership agreement is in force, or
  • if there was a certified domestic partnership agreement and it has ceased to have effect, property has been distributed or maintenance has been paid under it

THEN: State law applies (opting in to use the Family Court is not possible).

 
 
 
 

Two year time requirement - property disputes  :  Last Revised: Wed Aug 10th 2016
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