De Facto and Same Sex relationships

In Western Australia, De Facto and same sex couples have almost the same rights as married couples.

Since 2002, De Facto and same sex couples in Western Australia who meet the criteria of being in a De Facto relationship under the Family Court Act 1997 (WA) can apply to the Family Court for assistance.

The definition of what is a De Facto relationship has changed and evolved over time as the Court recognise that there is a wide variety of relationships in which people live. However, the Court attempts to define key factors as to whether a De Facto relationship exists between two people, these may include the following:

• The length of the relationship between them;
• Whether they lived in the same residence;
• Whether there is, or has been, a sexual relationship between them;
• The degree of financial dependence or interdependence, and any arrangements for financial support, between them;
• The ownership, use and purchase of their property (including property they own individually);
• The degree of mutual commitment by them to a shared life;
• Whether they care for and support children; and
• How their relationship as a couple is perceived by others.

It does not matter whether the people are of different sexes or of the same sex, or either person is legally married to someone else or in another De Facto relationship at the time.

To be able to make a De Facto property application to the Family Court of Western Australia:

• the parties must have separated after 1 December 2002;
• the Court must be satisfied that one or both of the parties to the application were living in Western Australia on the day the application was made and that the parties lived in Western Australia for at least one-third of their relationship; and
• there have been substantial financial or non-financial contributions made in Western Australia by the person applying to the Court.

The Court also needs to also be satisfied that there was a De Facto relationship for at least 2 years or if not, one of the following exceptions applies:

• there is a child of the relationship who has not yet attained the age of 18 years and failure to make the order would result in serious injustice to the person caring or responsible for the child; or
• the person who applies for the order made substantial financial and/or non-financial contributions and failure to make the order would result in serious injustice to that person.

It is important to note that an application for De Facto or same sex property settlement must be brought within 2 years of the parties separating. Outside of this period, a party must seek leave to apply to the Court and show that hardship would be caused if leave were not granted.

If you believe that you meet the criteria for a property settlement under the De Facto or same sex relationship provisions or, even if you aren’t sure, then call us and we will be able to assist you with your matter.