If you are in a de facto relationship with another person and your relationship ends, you may want to have a property settlement with them. There are many issues to consider.

Does a de facto relationship exist?

De facto relationships can exist between heterosexual or same sex couples. The Family Law Act defines a de facto relationship as being between two people who are not legally married, are not related, and have a relationship as a couple living together on a genuine domestic basis.

There are many factors to determine if such a relationship exists, detailed in a non-exhaustive list in section 4AA of The Family Law Act.

When can you apply to the Court for property settlement orders after a de facto relationship?

You can only obtain orders for a property settlement, whether by agreement or decided by a Judge if the de facto relationship is at least 2 years, or in some other limited circumstances.

Are there time limits after a de facto relationship ends?

You have 2 years from the date of separation to file an application to the Court seeking orders for a property settlement. If you want to file after this 2 year period, you have to seek permission from the Court first.

The case of Waldmann & Paddack [2024] FedFam C1A 100 was an appeal by Mr Waldmann against orders of the trial Judge which allowed Ms Paddack to file her application after the expiration of the two year period. The circumstances of the case were:

• The parties commenced a relationship in 1999 and separated in November or December 2018.

• The parties agreed that during the relationship their finances were intermingled.

• After separation the parties engaged in some correspondence regarding a property settlement which was initiated by Ms Paddack. However, those discussions were not successful, and ended in May 2020.

• Ms Paddack filed her application at Court on 11 April 2023. The two year limitation period had ended in November or December 2020. She sought an order that the Court grant her leave to file her application out of time.

• Ms Paddack argued that the reason for her delay in making the application was because she believed that the parties could resolve the issue between them and she was not aware of the 2 year limitation period.

• Mr Waldmann sought that Ms Paddack’s application should be dismissed in its entirety.

• The Senior Judicial Registrar, who was the first judicial officer hearing the case dismissed Ms Waldmann’s application and she filed a review of that decision.

• The review application was heard by a Judge. The Judge ordered that Ms Paddack was granted leave (permission) to file her application out of time.

• Mr Waldmann appealed that decision. Some of the grounds of the appeal were:

1. 1. That the trial judge gave no, or inadequate, reasons in relation to the following:-
      1. the basis for the finding that the [Ms Paddack] has a prima facie case; and
      2. the basis for the finding that the [Ms Paddack] would suffer hardship if leave were not granted.
   2. That the trial judge erred in finding that the explanation for the delay by the [Ms Paddack] was “sufficiently persuasive to justify the delay in filing the substantive application”.

Mr Waldmann was successful on his appeal. The Court did not accept Ms Paddack’s asserted ignorance of the limitation period was a valid basis to allow her leave to file out of time.

When should de facto parties get legal advice?

Get specialist legal advice promptly after the end of your relationship. This case study shows us the importance of time limits. Also importantly, circumstances of one or both of you may change significantly after separation. If you delay getting advice, the complexity of your situation may increase and this may then hinder your chances of being able to resolve your matter through negotiation or mediation.

Disclaimer: This article is intended to provide a general understanding of the subject matter. It should not be relied upon as legal advice. For specific legal advice related to your situation, please call Sarah Bevan Family Lawyers 02 9633 6088.