De Facto Relationships
De facto partners may apply for similar property settlement remedies under the Family Law Act 1975 as are available for married couples. Under the Act persons are in a de facto relationship if:
- they are not legally married to each other; and
- they are not related by family; and
- having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Various factors are considered to establish these criteria including:
- the duration of the relationship
- the common residence
- the existence of a sexual relationship
- financial dependence or interdependence
- ownership of assets
- mutual commitment
- care and support of children
- the perception of the relationship.
Parties to a de facto relationship may have property matters determined by the court provided that:
- the period of the relationship was at least two years; or
- there is a child of the relationship; or
- the relationship is registered under State or Territory legislation; or
- significant contributions have been made by one of the parties and the failure to issue a property order would result in a serious injustice.
Any proceedings for property adjustment must be commenced within two years of the de facto relationship ending.
In some cases, it may be necessary to prove that you were in a de facto relationship before accessing a property settlement and we can assist you with this.
Matters concerning children of a de facto relationship are dealt with under the Family Law Act.
The legal relevance of a de facto relationship
The recognition of a de facto relationship under the Family Law Act has been a major step in acknowledging the rights of less traditional (non-spousal) relationships. It is important however that de facto partners are aware of their legal status and can plan to prevent unintended consequences arising from their relationship. This is particularly relevant when it comes to your estate planning.
For example, generally, if a de facto partner dies intestate, then the surviving partner may be entitled to a significant share of the deceased partner’s estate. This might mean that your children from a previous relationship are unintentionally precluded (to the extent you would like) from benefiting from your estate.
Some de facto couples choose to make a binding financial agreement to set out how their property is divided if their relationship breaks down. Financial agreements are often used for couples who are in a new relationship but have children from a former relationship. The financial agreement may protect a partner’s children’s inheritance from potential family provision claims.
Whether you have separated from your de facto partner or are in a sound de facto relationship and want advice to clarify your legal status or help protect your interests, we can help.
If you need assistance, contact [email protected] or call 02 9550 9588 for expert legal advice.