Justin Dowd, Partner, Watts McCray
Sally Nicholes, Partner, Nicholes Family Lawyers (Vic)
Geoff Sinclair, Partner, Barry.Nilsson Lawyers (Qld)
Andrew Davies, Partner, O’Sullivan Davies Lawyers (WA)
Jane Miller, Partner, Tindall Gask Bentley Lawyers (SA)
Michelle Giacomo, barrister – Chalfont Chambers (NT)
Lois Clifford, Partner, DDCS Lawyers (ACT)
Parties in referring states in a de facto relationships twho separate after 1 March 2009 are now dealt with in the Family Court of Australia under the Family Law Act. The referring states are NSW, Victoria, Queensland, Tasmania, South Australia and the ACT.
De facto relationships in Western Australia and de facto relationships that ceased to exist prior to 1 March 2009 (or 1 July 2010 in the case of South Australia) in all other states and territories continue to be dealt with in the District Court or Supreme Court of each state and territory under the legislation applicable in that jurisdiction:
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New South Wales — Property (Relationships) Act 1984 (NSW);
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ACT — Domestic Relationships Act 1994 (ACT) ;
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Northern Territory — De Facto Relationships Act 1991 (NT);
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Queensland — Property Law Act 1974 (Qld) ;
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Victoria — Relationships Act 2008 (Vic) ;
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Tasmania — Relationships Act 2003 (Tas);
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Western Australia — Family Court Act 1997 (WA) or if no jurisdiction then the Property Law Act 1969 (WA) ;
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South Australia — Domestic Partners Property Act 1996 (SA) .
De facto law under the Family Law Act
Once the required period of cohabitation is established, consideration must be given to the “gateway requirements”, as not all de facto relationships are caught by the provisions of the Family Law Act. There must be a territorial connection, or a recognised exception to the normal gateway requirements.
Note that a “de facto relationship” includes both heterosexual and same-sex relationships.
See De facto law under the Family Law Act.
Cohabitation
Before parties can be said to be in a de facto relationship for the purposes of the Family Law Act or for state-based legislation, they must be "cohabitating".
It is also important to note the separation date, as the provisions of the Family Law Act relating to de facto property and financial settlements relate to parties who separate on or after 1 March 2009. (or 1 July 2010 in the case of South Australia).
See Cohabitation.
De facto law — state based
In the event that the relationship does not satisfy the “gateway” or other requirements of the Family Law Act, then the law applicable to that relationship will be state or territory based.
For a consideration of the state and territory based laws relating to de facto relationships not covered by the Family Law Act, see De facto law — state based.