Can I Obtain a Property Settlement Where I Have Been in a De Facto Relationship for Less than 2 Years?

De Facto, Property Settlement, 2 Year, Two Years, Brisbane

There can be issues with making a claim for property settlement where your de facto relationship was for a period less than 2 years. Generally, under section 90SB of the Family Law Act 1975 (Cth) (“FLA”), a court may only make an order altering property interests between parties if the court is satisfied:

  • the period or the total of the periods of that relationship is 2 years; or
  • there is a child of the de facto relationship; or
  • the party seeking property orders made substantial contributions to the property of either or both of the parties to the relationship or to the welfare of the family and the failure to make an order would result in serious injustice to that party; or
  • the relationship is or was registered under a prescribed law of a State or Territory.

The term “child of the de facto relationship” is defined under section 90RB of the FLA to refer to a child who is a child of both of the parties to the de facto relationship.

If your relationship was for a period less than 2 years and the only ground that you can rely on to obtain a family law property settlement is that there is a child of the relationship, you need to look to Division 1 (Subdivision D) of Part VII of the FLA to determine who is a child of a person.  Section 60HA (1) of the FLA provides that for the purpose of FLA, a child is the child of a person who has, or had, a de facto partner if:

(a)  the child is a child of the person and the person’s de facto partner; or

(b)  the child is adopted by the person and the person’s de facto partner or by either of them with the consent of the other; or

(c)  the child is, under subsection 60H(1) or section 60HB, a child of the person and the person’s de facto partner.

Where a same section couple have a child, section 60H(1) which deals with a child born as a result of artificial conception procedures will be of relevance. That section provides amongst other things that if:

(a)  a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent ); and

(b)  either:

(i)  the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure; or

(ii)  under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the other intended parent;

then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act:

(c)  the child is the child of the woman and of the other intended parent; and

(d)  if a person other than the woman and the other intended parent provided genetic material–the child is not the child of that person.

Remember the time limitation

For de facto (including same sex) couples, any Court action seeking property Orders under the Family Law Act 1975 must be made within 2 years of separation unless the Court is satisfied that hardship would be caused to the party or a child if leave were not granted, or if an 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.

Contact our experienced family law team if you require any assistance in obtaining a family law property settlement