A de facto relationship for the purposes of the Family Law Act (“the Act”) is a relationship between two people if they:
- are not legally married;
- are not related by family; and
- when considering all the circumstances of their relationship, have a relationship as a couple living together on a genuine domestic basis.
There are a number of considerations used to determine if two people are living as a couple on a genuine domestic basis. For a full consideration of these issues, see our article “Separated from your de facto? Can you claim against their property?”
Under the Act, the Court may make an order for property settlement in a de facto relationship if one of the following is satisfied:
- The period of cohabitation of the de facto relationship is at least 2 years; or
- There is a child of the de facto relationship; or
- A party to the de facto relationship made a substantial contribution and a failure to make the order would result in serious injustice; or
- The de facto relationship was registered under a prescribed law of a State or Territory (not available in South Australia).
The first two criteria are relatively straight forward and often simple to prove. Issues can arise in de facto relationships of a short duration (less than two years). In these relationships an order for property settlement can still be made if one party to the de facto relationship made a “substantial contribution”.
What is a substantial contribution?
Substantial contributions for this purpose of the Act can be a reference to either financial contributions or non-financial contributions. For example, not only will the contributions to the purchase of a house be considered (financial contribution), but the homemaking and parenting contributions (non-financial contributions) can also be considered as a type of contribution.
"If the court deems that a substantial contribution has been made, the court will also be required to determine whether or not a failure to make a property settlement order would result in a serious injustice. "
Where an issue may arise however, is how the court will determine that a particular contribution is substantial. The court’s approach is that what will be deemed as a substantial contribution will be analysed as a subjective test. This means that every case is required to be individually analysed.
The starting point comes from a decision of the Family Court of Western Australia in V & K  FCWA 80, where it was deemed that the word “substantial” meant something “exceptional, beyond the usual or normal”.
Each specific case is required to be analysed on the basis that what might be considered a “substantial contribution” in one case, may not be considered a “substantial contribution” in another case.”
If the court deems that a substantial contribution has been made, the court will also be required to determine whether or not a failure to make a property settlement order would result in a serious injustice. If the court is satisfied that a serious injustice would result, then the court is required to make an order for a property settlement.
If you want to make a claim for a de facto property settlement, we recommend that you seek legal advice from a lawyer experienced in Family Law.