De Facto Relationships
A de facto relationship is one where the parties are not legally married but are treated as a married couple for the purposes of family law.
A party to a de facto relationship will have rights and responsibilities under family law legislation and may seek both parenting and property settlement orders from the Federal Circuit and Family Court of Australia. A same-sex de facto relationship is treated no differently to other de facto relationships.
What is a de facto relationship?
There is no one size fits all checklist of factors to prove that a couple is or was in a de facto relationship, rather there are factors that should be taken into consideration when assessing whether a couple is in a de facto relationship. These include:
- If they are living together and, if so, for how long. In most cases the law requires parties to have lived together for 2 years to be in a de facto relationship. There are some exceptions to the two-year minimum period including, where the de facto couple share a child and where one party has made substantial contributions to the relationship for which that party would not be adequately compensated if an order was not made Whether the couple has a sexual/intimate relationship
- Whether they share joint bank accounts or own property together
- Whether they share weekly living costs, such as utility bills
- Whether their family and friends know them to be a couple
- Whether they share any children
De facto relationships and property settlements
The Family Law Act allows parties in a de facto relationship to make an application to the court for orders regarding financial matters following a breakup. Financial matters include:
- property settlements
- spousal maintenance matters
- superannuation splits
Generally, any court proceedings for a property settlement must be commenced within two years of a de facto relationship ending, although there are some exceptions to this rule.
De facto relationships and asset protection
If you are considered to be living in a de facto relationship, you should understand the implications as it relates to family law and your estate planning. For example, generally, if a de facto partner dies intestate (without a will), then the surviving partner may be entitled to a significant share of the deceased partner’s estate. This might mean that any children you have from a previous relationship could be unintentionally excluded from your estate or receive a lesser share than what you would otherwise have intended. Getting legal advice can help to ensure that your wishes are reflected in your will and estate planning.
Some de facto couples choose to make a binding financial agreement to set out how their property will be divided if their relationship breaks down in the future. This can be beneficial for couples who have been in previous relationships and bring significant assets into the new relationship and/or who have children from a former relationship.
If you need help working through the legal implications of your de facto relationship or if you have recently separated from your de facto partner, we can help.
If you need any assistance, contact one of our lawyers at [email protected] or call 1300 704 064 for a no-obligation discussion and expert legal advice.