Property (Relationships) Act 1984

The Act primarily affects adult persons (defined in s 3(1) as those 18 years or older) who are or have been in a “domestic relationship”. That term is defined in s 5(1) as either a de facto relationship or a close personal relationship (other than marriage or a de facto relationship) in which the parties live together and one or each provides the other with domestic support and personal care. Section 4(1) defines a de facto relationship as one between two adults who live together as a couple and are not married to or related by family to one another. The multi-factorial list in s 4(2) (duration, common residence, sexual relationship, financial interdependence, property ownership, mutual commitment, care of children, household duties, reputation and public aspects) is not exhaustive and no single factor is necessary (s 4(3)).

“Related by family” is itself defined in s 5A by reference to lineal ancestry, descent or a common parent, with extended rules for adoption and surrogacy under the Surrogacy Act 2010 (NSW) and the Adoption Act. Registered relationships and interstate registered relationships under the Relationships Register Act 2010 are deemed de facto relationships (s 3(4)).

The legislation therefore catches not only opposite-sex and same-sex couples but also non-romantic “caring” relationships provided they meet the statutory criteria and are not excluded by the “fee or reward” or “on behalf of an organisation” carve-outs in s 5(2). Children of the parties are broadly defined in s 5(3) to include biological, adopted, presumed (under the Status of Children Act 1996), and children for whose long-term welfare both parties have parental responsibility under the Children and Young Persons (Care and Protection) Act 1998.

Applicants and respondents may be living, deceased (with proceedings continued by or against legal personal representatives in property cases—s 24), or have entered subsequent relationships (which bars fresh maintenance claims under s 29). The Act applies to relationships that ended before its commencement only in limited respects (s 6). Creditors, bona fide purchasers and third parties with interests in property are protected by ss 8(3), 42 and 43. Legal practitioners giving the certificates required by s 47 are indirectly affected, as are trustees appointed or removed under s 38(1)(g).

Parties to a domestic relationship have no general duty to maintain one another (s 26). Rights arise only upon application to a court and satisfaction of statutory prerequisites. The central right is to seek an order adjusting interests in property on the basis of contribution (s 20) or, in narrower circumstances, maintenance (s 27). The court must endeavour to make orders that finally determine the financial relationships between the parties and avoid further proceedings (s 19).

An applicant has the right to apply for a declaration of existing title or rights in property (s 8), for interim maintenance in cases of immediate need (s 28), for adjournment where significant changes in financial circumstances are anticipated (s 21) or where federal family law proceedings are on foot (s 22), and for variation of periodic maintenance orders on changed circumstances or cost-of-living movements (s 35). Rights also exist to enforce agreements that satisfy the s 47 criteria and, conversely, to seek variation of domestic relationship agreements where enforcement would cause serious injustice because of changed circumstances (s 49).

Corresponding duties include the obligation to notify the other party of marriage or remarriage if periodic maintenance is being paid (s 32(2)), the duty not to enter transactions that would defeat anticipated orders (s 42), and the duty to comply with court orders and injunctions on pain of contempt, fine or imprisonment (ss 54, 59). Parties must also satisfy the court of residency and substantial connection with New South Wales before any order can be made (s 15).

Third parties have the right to be heard where their interests may be affected (s 43) and bona fide purchasers are protected. The court itself is under duties: to act in aid of other courts exercising jurisdiction under the Act (s 13), to have regard to the interests of third parties (s 43), and to preserve pension entitlements when making maintenance orders (s 27(3)).

Breach of an injunction granted under s 53 carries a criminal penalty of imprisonment for up to six months if the order has been personally served and the breach is knowing (s 54(1)). This is in addition to the court’s contempt powers (s 54(2)). Contravention of any other non-monetary order or injunction attracts a fine of up to 20 penalty units, the requirement to enter a recognizance, imprisonment for up to three months until a recognizance is entered, or other orders necessary to secure compliance (s 59(1)). Double jeopardy is avoided: a person may be prosecuted under other legislation but not punished twice for the same act or omission (s 59(3)).

Monetary orders are enforced through the mechanisms in ss 57 and 58, which apply the Civil Procedure Act 2005 and Local Court Act 2007 enforcement regimes. The Supreme Court may appoint an officer to execute deeds or instruments if a party refuses (s 39). Transactions designed to defeat claims may be set aside and property clawed back (s 42), with costs orders against colluding parties. Orders for possession, sale, lump sums, periodic payments, security, injunctions and trusteeship are all available under the broad powers in s 38.

Arrears of maintenance remain recoverable even after an order ceases (s 34). Declarations under s 56 are conclusive while in force but may be annulled on new facts with ancillary restorative orders (s 56(7)–(9)).

The Act is expressly subordinate to federal family law. Section 22 permits adjournment where proceedings have been commenced in the Federal Circuit and Family Court of Australia (Division 1). The note to s 32 acknowledges the effect of the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) on recognition of same-sex marriages.

Extensive cross-references appear throughout. The definitions of “child of the parties” in s 5(3) incorporate presumptions under the Status of Children Act 1996 and parental responsibility under the Children and Young Persons (Care and Protection) Act 1998. Adoption and surrogacy rules in s 5A refer to the Adoption Act and Surrogacy Act 2010. Jurisdiction of the Local Court is capped by reference to the Local Court Act 2007 (ss 10, 12). Enforcement provisions invoke the Civil Procedure Act 2005 (s 58). Agreements are subject to the Contracts Review Act 1980 (s 46). The Interpretation Act 1987 applies to the construction of the Act (note to s 3(1)).

Section 7 provides that nothing in the Act derogates from rights under any other Act or law, preserving actions in equity (resulting or constructive trusts), contract, tort or under the Succession Act 2006 for family provision. Part 5 injunctions sit alongside Apprehended Domestic Violence Orders under the Crimes (Domestic and Personal Violence) Act 2007. The Act does not affect the criminal law (s 55) or the law of partnership.

The most significant overhaul occurred via the Property (Relationships) Legislation Amendment Act 1999, which replaced the former De Facto Relationships Act 1984 name and expanded the statute to “domestic relationships”. This brought non-couple caring relationships within the Act’s protective scope, responding to changing social patterns of cohabitation and caregiving. The 1999 Act also aligned the legislation more closely with the Family Law Act by adopting a contribution-based adjustment model and introducing the rigorous certification requirements for agreements in s 47.

Subsequent amendments have been largely technical. The 2010 amendments (Relationships Register Act 2010 Sch 2.3 and Surrogacy Act 2010 Sch 2.5) updated parentage presumptions for same-sex couples and surrogacy. The 2018 amendments (Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) flow-through) updated the note to s 32 and s 62. The 2023 amendment substituted references to the Federal Circuit and Family Court (s 22). Minor jurisdictional updates reflect the replacement of the District Court and changes to Local Court monetary limits (2005–2007 amendments).

These changes reflect a legislative policy of modernisation, recognition of diverse family forms, and harmonisation with federal law while preserving the Act’s character as a state-based safety net for relationships outside the Marriage Act 1961 (Cth).

Although the Act itself has not generated the volume of constitutional litigation seen in federal family law, several interpretive controversies have arisen. The multi-factorial test in s 4(2) has produced divergent first-instance decisions on whether particular relationships qualify as de facto, particularly where parties maintain separate residences or financial independence. Appellate courts have emphasised the holistic nature of the inquiry and the absence of any “checklist” requirement (consistent with the express words of s 4(3)).

The interaction between s 20 contributions and equitable doctrines of constructive trust has been contentious. Courts have held that the statutory jurisdiction is not ousted by the existence of an equitable interest and may be exercised even after a declaration under s 8. The “serious injustice” gateway in s 17(2) and the “greater hardship” test for leave out of time under s 18(2) have generated discretionary jurisprudence that turns heavily on the facts of each case.

Section 47’s strict compliance requirements for agreements have been the subject of litigation concerning the adequacy of legal advice certificates and whether minor technical defects can be cured by the fallback jurisdiction in s 47(2). The anti-avoidance provision in s 42 has been used in tandem with s 38(1)(h) injunctions, raising questions about the threshold for “likely to defeat” an order.

Controversies also surround the exclusion of caring relationships provided “for fee or reward” (s 5(2)(a)). Paid live-in carers are excluded, yet the boundary with genuine domestic relationships has been tested in cases involving elderly relatives and paid companions.

Most practitioners miss that the two-year cohabitation threshold in s 17(1) is not a bright-line rule: s 17(2) permits orders where there is a child or substantial contributions for which the applicant would otherwise be inadequately compensated and failure to order would cause serious injustice. The “serious injustice” test is not the same as the “greater hardship” test for out-of-time applications under s 18(2).

The definition of “property” in s 3(1) is extraordinarily wide, expressly capturing superannuation entitlements (as “financial resources”), choses in action, damages claims (including for personal injury), and interests under discretionary trusts. Many litigants fail to appreciate that a prospective superannuation claim can be taken into account even though it is not yet vested.

Section 47(1) certificates must state that advice was given independently and must cover both the effect on Part 3 rights and the advantages and disadvantages at the time the advice was provided. A certificate that merely says “I have advised on the agreement” is insufficient and opens the door to the fallback jurisdiction in s 47(2), which permits the court to have regard to the agreement’s terms but is not bound by them.

The Act’s maintenance provisions are far narrower than under the Family Law Act. An applicant who has no child under the relevant age and whose earning capacity was not adversely affected by the relationship has no maintenance rights at all, regardless of disparity in wealth. Periodic maintenance orders for child-care reasons automatically cease when the applicant ceases to have care and control (s 33), a trap for parties who informally change residence arrangements.

Section 56 declarations are conclusive while in force but can be annulled on new facts with restorative orders. A declaration obtained on incomplete evidence can therefore create a false sense of security. Finally, the 1999 amendments’ transitional provisions in s 6(2) and s 62 are often overlooked; pre-1999 domestic (non-de facto) relationships remain outside the property adjustment regime except for Part 5 injunctions.

Compliance begins with accurate characterisation of the relationship. Advisors should methodically address each s 4(2) factor, document the parties’ living arrangements, finances, reputation and intentions. Where a relationship may be borderline, obtain a s 56 declaration from the Supreme Court at an early stage.

For property adjustment, compile comprehensive evidence of contributions over the entire relationship, including indirect financial contributions and homemaker contributions. Valuations of real property, businesses, superannuation and discretionary trust interests should be obtained early. Where significant future changes are anticipated (vesting of interests, inheritance, business sale), consider seeking an adjournment under s 21 rather than an immediate order that may later require variation under s 41.

Maintenance claims require proof of inability to support oneself by reference to the specific limbs of s 27(1). Detailed financial statements, evidence of earning capacity before and after the relationship, and child-care arrangements are essential. Draft orders should preserve social security entitlements (s 27(3)).

When preparing domestic relationship or termination agreements, strict adherence to s 47 is mandatory. Each party must receive independent legal advice from a solicitor who is not acting for the other party. The certificate must be in or to the effect of the prescribed form, annexed to the agreement, and the agreement must be signed. Advise clients in writing of the advantages and disadvantages at the time of signing. Retain file notes demonstrating the advice was given before signature.

To avoid s 42 claw-back, ensure any transfers or dealings with property after separation are for valuable consideration and not at undervalue where an application is anticipated. Where litigation is on foot or imminent, obtain s 38(1)(h) injunctions promptly.

For enforcement, register Supreme Court orders in the Local Court where necessary (s 57) and utilise garnishee, writ of execution or charging orders under the Civil Procedure Act 2005. Where personal service of injunctions is required for s 54 criminal liability, file affidavits of service promptly.

Regularly review periodic maintenance orders against cost-of-living indices (s 35(3)) but observe the 12-month moratorium on cost-of-living variations (s 35(4)). Advise clients that entering a new domestic relationship or marrying will automatically bar fresh maintenance claims (s 29) and cause existing periodic maintenance orders to cease (s 32).

In all cases, keep the s 19 duty in mind: draft orders that achieve a clean break. Where third-party interests are involved (trustees, creditors, business partners), join them or seek protective orders under s 43. Compliance is best achieved by treating the Act as a complete code for its subject matter while remaining alert to overlapping equitable, contractual and federal rights.