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What Orders Can The Court Make If One Party Denies A De Facto Relationship?


Before a Court can make any financial Orders where jurisdiction is based on the parties having been in a de facto relationship, the Court must first make a declaration under Section 90RD of the Family Law Act. Where one party disputes the existence of a de facto relationship, the Court must look at the definition at section 4AA to determine whether or not the parties were living in a de facto relationship and whether or not the family law Court has jurisdiction to deal with the matter. If the Court finds the parties do not satisfy the de facto definition then the Court will have no jurisdiction to make property Orders. If there is no jurisdiction in the family law Court and property is held jointly, the Applicant may find relief at a State Court e.g. Section 66G Application pursuant to the Conveyancing Act (NSW).

Pending the determination of whether the parties satisfy the de facto definition under Section 4AA, the Court has very limited powers to make procedural and interlocutory Orders, also referred to as ‘Holding Orders’. The Court has the power to control its own processes and to protect its function as a Court by granting interlocutory injunctions so as to ‘preserve the status quo’ pending the resolution of the issue of jurisdiction. The Court has power to make Orders or give Directions in respect of the provision of financial information as is reasonably necessary for the determination of the jurisdictional fact, being whether or not the parties were in a de facto relationship. The Court does not have power in these circumstances to grant injunctions (under Section 114(2)(a), or 114(3) or 90SS) as they can only be granted in a de facto financial cause, which is yet to be determined.

Although interlocutory injunctions are ‘holding orders’ which the Court can make pending the determination of the jurisdictional fact necessary to found jurisdiction, the Full Court’s analysis in Norton and Locke (2013) 50 FamLR 517, states that if this were the case the Applicant would be entitled to that relief almost as a right pending resolution of the jurisdictional question. The Court is limited in relief to ‘preserve the status quo’ by the narrow ambit of the power itself and by the narrow jurisdiction within which the power is being exercised. Also, considering that these injunctions restrict how a Respondent deals with their property, they should not be entered into lightly.

Image Credit – Auremar © 123RF.com

Written by Natasha Heathcote on June 13, 2017

Natasha has a strong passion for family law, and believes that the law can be used to achieve positive resolutions for her clients. When working with clients, Natasha shows compassion and first seeks to understand what is important to her clients, then looks for legal solutions that will best suit them. View Natasha's profile


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