What Is A De Facto Relationship & How Can A De Facto Lawyer Help?
If you are in a de facto relationship, whether long term or short term, you have similar rights to a married couple.
More of us are choosing to enter into or stay in long-term relationships without getting married. In recent years, Australia has broadened the meaning of de facto relationships significantly, including recognising same-sex couples as de facto couples in property settlements. A De facto relationship is essentially a marriage-like relationship where both parties have a relationship involving living together on a domestic basis without being married. De facto relationships are common in Australia. They are often entered into after years of dating or cohabitation. The couple usually lives together and have a domestic relationship which may include having children together, a shared financial responsibility and have mutual commitment to the shared living arrangements and care arrangements.
A De Facto Relationship Vs Marriage
De facto couples are now treated in the same way as married couples.
Since 1 March 2009 de facto couples are now treated in the same way as married couples for the purposes of a division of their property after a separation and their matters are now heard in the Family Court and Federal Circuit Court.
You are in a de facto relationship if:
- You and your partner are not married;
- You are not family-related; and
- You are a genuine couple, living together on an indefinite basis.
What does this mean for you if you are contemplating either entering into a de facto relationship or are looking to separate after having been in a de facto relationship?
Well, there can be a more intense focus on the relationship itself where your partner may deny the relationship existed or perhaps disputes the length of the relationship.
Alternatively, you may have found yourself in a brief casual relationship with an ex-partner who is attempting to claim for a financial settlement. In determining the legitimacy of your relationship in order to finalise a property settlement, the court may wish to evaluate some or all of the following:
- When you and your partner commenced the relationship
- The nature of your living situation;
- The capacity to financially and emotionally support each other;
- Whether or not you appear to be a continuing genuine couple;
- If there is a sexual relationship
- Whether your relationship is legally registered under state legislation in Australia; and/or
- If there are dependent children involved.
First Steps To Take In De Facto Relationship Separation
If you are thinking about separating from your de facto partner, our de facto lawyers can help guide you through this process. Whether there are children involved our lawyers will ensure that you have an ongoing relationship with your children or if it is a financial agreement you are seeking, we can help ensure you have positive financial arrangements with your former partner.
If you can’t agree with your former de facto partner about the date you separated, you should prepare to get written proof of that date as it may help you if you are in a dispute later on. The following factors are taken into account when determining whether you are separated or not:
- Do you live in the same bedroom or in a separate bedroom?
- Do you continue to have a sexual relationship or intimate relationship with your former partner?
- Do you continue to do home duties for each other like cooking, cleaning, washing, gardening or organizing groceries for each other?
- What are the financial aspects of your situation; do you continue to share finances like paying for utilities, groceries, car expenses, clothes?
- Do you have financial dependence as a couple?
- Do you continue to go out as a couple? For example, are you still going out to family and friend gatherings as a couple?
- Did you declare yourself separated to government agencies such as Centrelink or the Australian Taxation Office?
- Do you still share household expenses and household chores?
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If you want to be able to access certain benefits such as health care, education, and pension, then you need to register your de facto relationship. However, if you don’t want to do this, then you can just live together as a couple.
The date of separation can affect your right to bring a claim for a property settlement. There is a time limit of two years after the end of your de facto relationship to bring a claim under the Family Law Act 1975 (Cth). If you are not sure if you have been separated but living under the same roof, you should obtain legal advice because if you fail to do so within two years of separation, then you will have to seek leave from the Court and leave can be rejected. If this happens, you may lose your right to a property settlement with your former partner.
Yes! They certainly are. The Family Law Act recognizes that de facto relationships can be between people of the same sex or people of the opposite sex. The laws apply in the same way.
A de facto separation has no effect on your will. So, if you have left something to your former partner in your will, then that partner will still inherit it under your will. If you would like to change that situation you will need to update you will stat!
Probably not. If you have moved into separate bedrooms then it does not matter if you are still living in the same house. The law recognizes that people can separate but still live in the same house. You should make sure that you communicate with your partner that you are separated, preferably in writing, so that the date of separation is more difficult to dispute.
No. The law in relation to de facto relationships does not prohibit you or your partner from being in multiple de facto relationships. There is no waiting period before you can commence another de facto relationship.
Spousal maintenance is not dependent on whether you were married. It applies equally to married couples and to people who were in a de facto relationship. We recommend that you speak with us to get further advice about spousal maintenance.
It is a good idea to speak with a family lawyer before you separate so that you know your options early on and to make sure you do not do anything that may jeopardise your ability to settle your matter swiftly. At O’Loan Family Law, we are available for a no-obligation consultation to talk about your concerns about your de facto relationship and help you navigate the best pathway forward for you.
As a general rule, before considering making an order for property settlement or spousal maintenance after separation with the family law courts, parties must have been in a relationship for at least 2 years without separation. However, exceptions exist to this rule, such as whether parties have joint property, if any substantial contributions were made and if there are children to the relationship.
You can prove a de facto relationship by registering your relationship through your states’ Registry of Births, Deaths and Marriages. Registration of relationships can be used to legally prove your de facto relationship and how long you have been together.
Our De Facto Lawyers Can Help
Our de facto lawyers take a personalised approach to family law. We have extensive experience to provide expert advice in handling property settlements, parenting matters, give you advice on property division by helping you conquer disputes over property, disputes about children and child support agreements to help you through your defacto relationship breakdown. Should you be separating on amicable terms but need assistance with the legalities to formalise your separation agreement, we offer an Assisted DIY Separation service.
If you are separating, you need our dedicated family lawyers on the North Shore are on your side to receive the appropriate legal advice for your family law matter; contact us to book your complimentary introductory call where we will provide you with personalised advice on your legal matters.