Introduction

If a person makes substantial contribution during a de facto relationship and the relationship comes to an end fairly quickly, that person may still have a claim for property settlement against the former partner depending upon the effect on that person if orders for final property division were not made. Pursuant to the Family Law Act 1975 (Cth), a court may make an order for division of property only in there has been a de facto relationship of at least 2 years’ duration or if there is a child of the relationship. Notwithstanding the legislation and when neither of those requirements is met, a court I still at liberty to make a final property order if the party who applies to the court for final orders for property division made substantial contributions and a failure of the court to make an order for final property division would result in serious injustice to the applicant.

The contributions are the normal direct or indirect financial contributions to the acquisition, conservation or improvement of property belonging to either or both of the parties and/or non- financial contributions. Contributions made directly or indirectly by a party to the welfare of the family and as homemaker or parent are also considered.

Recent Case Law

In Adesso & Payton [2019], before the Federal Circuit Court of Australia, the applicant (Ms. A) sought a declaration that there was a de facto relationship within the meaning of the Family Law Act 1975 (Cth).  Ms A needed that declaration so that she could bring her case in the family courts seeking final orders for property settlement. Ms A and Mr P had been in a de facto relationship from August 2016 until December 2017. Although Ms A had a child X from a former relationship, she and Mr P did not have children together. Ultimately Ms A was unsuccessful the court finding that there were no grounds for the court to make the declaration that she sought in this particular case.  It found that the applicant had not made substantial contributions and the court did not consider that there would be a serious injustice to her where no property orders were made. The court relied upon a previous case to say that substantial contributions must be something more than usual or ordinary contributions.

Whilst it was found that Ms A had made contributions such as towards the gardening of a property and domestic duties, in the context of a short relationship where there was no child of the relationship, the court did not think that her contributions could be considered anything other than ordinary and usual as opposed to substantial. As the court did not consider that Ms A would succeed in obtaining an order for final property division even if she were allowed to proceed with her claim,  neither did the court consider that there was any serious injustice to her  in the court deciding not to make any declaration as to a de facto relationship