When parties who have been in a domestic relationship (also known as a de facto relationship) separate, any dispute they have about the division of their property does not fall within the scope of the Family Law Act 1975. It is governed by Victorian Law, which, as of 1 December 2008 will be the Relationships Act 2008.

The definition of domestic relationship in Victoria is the relationship between two people who have been living together on a genuine domestic basis, irrespective of gender. Whether a domestic relationship exists is decided by looking at a range of factors, which include: the duration of the relationship, the nature and extent of the common residence, whether there was a sexual relationship, financial dependency of the parties, ownership, use and acquisition of property, whether there are children and the care arrangements for the children and the public aspects of the relationship.

The Relationships Act creates a register for domestic relationships and defines a "registrable relationship" as one between two adults who are not married, where one or each of the persons provides personal commitment and support of a domestic nature to the other, irrespective of their genders and whether they live together. If the relationship is not registered, this does not preclude the party from making an application to the Court but they will have to prove that they are in a domestic relationship and entitled to make a claim.

Court proceedings

Couples who have been cohabitating for two years or more in a domestic relationship, or have been cohabitating for less than two years but have a child together may be entitled to make a claim. If neither of those requirements is met, a party may still come within the scope of the Relationships Act if one party made substantial contributions to the wealth and/or welfare of the family and that to not permit proceedings would result in a “serious injustice”.

If you are unable to come to an agreement as to the division of the assets of the relationship, proceedings can be instituted in the Magistrates’ Court, County Court or the Supreme Court, depending on the quantum of the asset pool. Proceedings must be instituted within two years after the day on which the relationship ended. If the relationship has ended more than two years ago, leave of the Court needs to be obtained.

The Court has the power to adjust the property interests of one or both of the members of the domestic relationship, taking into consideration the financial and non-financial contributions of the parties during the relationship.

Income, property and financial resources of the parties, their physical and mental capacity to obtain gainful employment, financial needs and responsibilities of the parties, age and state of health of the parties and any other factor the Court thinks relevant can all be examined when deciding an application for a property order or maintenance.

Superannuation is considered a financial resource, rather than property, which means that the Court cannot make an Order for the division of a superannuation payment but can take that superannuation interest into account as a financial resource when making an Order.

Relationship Agreements

People in domestic relationships will have the option of entering into a Relationship Agreement evidencing how the property of the relationship is to be dealt with in the event of separation. Relationship Agreements can be entered into at the commencement of, during the relationship or after the relationship has ended. Relationship Agreements will be binding and enforceable under contract law.

Similar to Binding Financial Agreements under the Family Law Act, parties to a Relationship Agreement need to obtain independent legal advice as to the effect of the agreement on the rights of that party; and the advantages and disadvantages, at the time that the advice was provided, to the party of making the agreement.

Maintenance

The Relationships Act provides parties with a mechanism to seek maintenance, akin to the spousal maintenance [include link to spousal maintenance page] provisions under the Family Law Act.

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