The Family Court Amendment Bill introduced in the WA Parliament in September 2001, came into law on 1 December 2002.  It gives de facto couples substantially the same rights and remedies as married couples, enforceable through the Family Court of Western Australia.

The legislation provides de facto couples with legal rights in relation to property and maintenance. The legislation brings Western Australia substantially into line with other States, with the notable exception that the jurisdiction to deal with these matters will be vested in the Family Court of Western Australia rather than the State Supreme Courts, as is the case elsewhere.

Previously, de facto couples needed to argue their cases before the Supreme Court employing equitable principles which was often very complicated, costly, time consuming and public.  However the current legislation now allows de facto couples to use the Family Court to resolve their property disputes using the same procedures as have been available to married couples since 1975.

Definition of a de facto relationship under the new law

Other issues dealt with under the new law.

Recognition of a de facto relationship applies only if either or both partners are over 18 years of age.  However, a de facto relationship may be acknowledged where both partners are over 16 years if the Court finds that the circumstances of the relationship are so exceptional and unusual to justify the application of the new law. 

The laws in WA for relationships which ended prior to December 2002 are based on equitable principles which are enforced in the Supreme Court of WA.

Property distribution under the previous law

In WA property distribution on the breakdown of earlier de facto relationship is done according to legal status, contract and equitable principles of law.

If property is legally registered in the name of one person, then the Courts will not normally intervene to give the other party any interest or share in that property.

If property has been acquired during a de facto relationship, the person who paid for it will generally be the one who retains it after the relationship has broken down.

Where a contractual agreement as to property division exists between parties their intention will normally be given effect by the Courts.  That intention can be inferred or implied from the parties’ conduct in some circumstances but it is obviously better to have an agreement in writing to remove any doubt. 

In some circumstances, equitable principles may be applied to protect a party where it would be unconscionable for the other to retain property simply because he/she has legal title.  Various types of “trust” can be created whereby a property (or an interest in property) may be in one person’s name “as trustee” for the other.  This is a complex area of law and you should seek legal advice regarding its applications in specific circumstances.

Children of de facto relationships in Western Australia

In Western Australia children of a de facto marriage are treated in much the same way as in all other States.  Disputes over arrangements for children of a de facto relationship are dealt with in the Family Court of Western Australia and the laws applied are effectively the same as those for children of a marriage.

There are some technical differences which relate to the fact that Western Australia has not agreed to allow the Commonwealth to make laws in relation to children of de facto relationships but, because Western Australia has now passed legislation effectively adopting the Commonwealth laws, the result is the same.