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.
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.
We are here to help you if your de facto relationship breaks down. We have expertise in understanding how the Court’s “checklist” of relevant factors applies to your particular circumstances. To view all our family law services please browse this website.
De Facto Relationships FAQs
What are the first steps I need to take to separate from my de facto 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 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?
· Do you continue to share finances like paying for utilities, groceries, car expenses, clothes?
· 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?
Why is the date of separation so important?
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.
Are same-sex de facto relationships dealt with in the same way as heterosexual de facto relationships?
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.
What is the effect of a de facto separation on my will?
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!
We live in the same house but in separate bedrooms. Are we still considered a de facto couple?
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.
Do I have to wait after separating before I can start another de facto relationship?
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.
Can I claim spousal maintenance even though I am not married to my partner?
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.
Should I see a lawyer before I separate from my de facto partner?
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.