The Family Court Act (WA) provides that two parties (irrespective of gender) are in a de facto relationship if they:

• are not legally married;
• are not related by family; and
• are living together as a couple on a genuine domestic basis.

In assessing whether parties are in a de facto relationship and are in fact living together on a genuine domestic basis the court must take into consideration the following factors:

• the duration of the parties’ relationship;
• the nature and extent of the parties’ common residence;
• whether a sexual relationship exists between the parties;
• the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;
• the ownership, use and acquisition of the parties property;
• the degree of the parties’ mutual commitment to a shared life;
• whether the parties relationship is or was registered under a prescribed law of a state or territory;
• the care and support of children to the parties’ relationship; and
• the reputation and public aspects of the relationship.

To satisfy the court of the existence of the de facto relationship the party will need to firstly satisfy the definition of a de facto relationship, in addition to one of the following factors:

• the relationship extended for a total period of not less than two years; or
• there is a child of the de facto relationship; or
• the party made substantial contributions and a failure to make an order for a property settlement would result in serious injustice to that party; or
• the relationship was registered under prescribed state or territory law.

Parties may be in several de facto relationships or married to another person, provided that the criteria set out in the legislation are met.
In family law, the word “separation” refers to the end of a de facto relationship or marriage. Knowing the date of separation is crucial because all family court proceedings calculate time limits from when the relationship ended.
 

Determining the Date of Separation

 
The date of separation is the day the two individuals stop living together as a couple, but it can be hard to pin down to an exact date. A typical way to establish the date of separation is when one party moves out of the shared residence.
However, it is not uncommon for separated couples to continue to live together for a variety of reasons. This might be because of financial reasons, or to more easily share custody of children, or just for convenience. The law makes allowance for this by permitting a couple to claim “separation under one roof.”
 

Agreeing to a Date of Separation

 
There are some questions that the parties can ask themselves when trying to determine an accurate date of separation:

• When did the couple stop sharing a bedroom?
• When did the couple stop having a sexual relationship?
• When did they separate their finances?
• When did they notify government agencies (such as Child Support Services and Centrelink) of the separation?
• When did the parties inform family and friends of the separation?

When there is an unresolved dispute over the date of separation, the court will make a judgment based on a consideration of all relevant factors.
 

What If There Was a Reconciliation During The Separation?

 
It is common for a couple to attempt to reconcile during a separation. This can make it harder to assess exactly when a relationship ended. The Family Law Act 1975 provides that if a reconciliation lasts for three months or less, then the length of the first separation can be added to the subsequent separation for the purposes of limitation periods. If the couple reunites for more than three months, then the date of separation begins from the end of the reconciliation.
 

Steps To Take When Separating

 
Newly separated couples can take certain actions that should clarify the situation somewhat. They should:

• Contact government agencies to update relationship status
• Inform family and friends immediately, as they can provide evidence in an affidavit of the length of separation.
• Untangle financial affairs, including notifying insurance companies, superannuation funds and banks. Joint bank accounts may also be closed and separate bank accounts established.
• Consult a lawyer as soon as possible, as they will be able to provide advice that is tailored to the particular circumstances of the couple.

If you need more information about calculating the date of separation for a family law proceeding, please call Maude Family Lawyers on (08) 6383 6130 or send us an email at reception@maudefamilylawyers.com.au