Property Orders – “The Gateway Issues”

While amendments to the Family Law Act now give separated de facto couples (both opposite sex and same-sex relationships) the same rights as separating married couples, there are additional “gateway issues” that the law considers in proceedings for property Orders in the case of a de facto relationship.

The importance of the “gateway issues” is discussed in our article on “Property Division“. Below is an explanation of the four “gateway issues”, which are: the existence of a de facto relationship; the duration of the relationship; the geographical requirement; and the relationship breakdown time frame.

Existence of a de facto relationship

The main matter that requires financial de facto proceedings to be commenced and in part conducted in a way that is different to financial proceedings between parties to a marriage is the need to first establish the existence of the de facto relationship as defined in the Family Law Act.

While there is little difficulty in establishing the existence of a marriage relationship as the Marriage Certificate establishes that there is a marriage, the Court must first establish that the parties lived in a de facto relationship in property and financial matters.

With the exception of some limited circumstances there is normally no documentary evidence to establish parties have been living in a de facto relationship. How then do you first establish that the parties were in fact living in a de facto relationship? What is a “de facto relationship”? 

A de facto relationship is defined under s 4AA of the Family Law Act as follows: 

Pursuant to section 4AA of the Family Law Act, a person is defined as being in a de facto relationship with another person if: 

(a) the persons are not legally married to each other; and 

(b) the persons are not related by family (i.e., one is not the child (including an adopted child) of the other; or one is not another descendant of the other (even if the relationship between them is traced through an adoptive parent); or they do not have a parent in common (who may be an adoptive parent of either or both of them; and 

(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis. 

The law clarifies that a de facto relationship can exist between two persons of different sexes and between two persons of the same sex; and a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship. 

For more information on what is taken into account in determining the existence of a de facto relationship, see “What is a de facto relationship?“

Duration of the relationship

Pursuant to section 90SB, a second gateway issue that must be established before a Family Law Court has jurisdiction to determine the division of property following the breakdown of a de facto relationship is that the relationship must have lasted for at least two years, unless there was a child born of the relationship, or a significant financial contribution was made by the party seeking to commence proceedings under the Family Law Act and that an injustice would occur if the proceedings could not be commenced, or that the relationship is registered. The requirement for the de facto relationship to have subsisted for “at least 2 years” can be met by aggregating periods of de facto relationship (Dahl & Hamblin [2011] FamCAFC 202). 

Geographical requirement

Pursuant to section 90SK, a third gateway issue that must be established before a Family Law Court has jurisdiction to determine the division of property following the breakdown of a de facto relationship is the geographic requirement. The Court must be satisfied:

(a) that either or both of the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the application for the order was made (i.e., in a State or Territory of Australia); and

(b) that either: 

     (i)   both parties to the de facto relationship were ordinarily resident during at least a third of the de facto relationship; or 

   (ii)  the applicant for the order made substantial contributions, in relation to the de facto relationship; in one or more States or Territories that are participating jurisdictions at the application time; or 

    (iii)  that the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the relationship broke down. 

Relationship breakdown time frame

The fourth gateway issue that must be established before a Family Law Court has jurisdiction to determine the division of property following the breakdown of a de facto relationship is that the de facto relationship must have broken down after 1 March 2009. If the relationship ended prior to 1 March 2009 then the State law will govern the division of property rather than the Commonwealth family law.

If you were a party to a de facto relationship or same-sex relationship and require assistance in negotiating a family law financial property settlement or in making an Application to the Family Law Courts for an Order for the division of assets, our experts at Prime Lawyers – Family Law Division can help. Contact us to make an appointment with a family lawyer at your nearest Prime Lawyers office.

We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.