De Facto Relationships

Like married couples, heterosexual and same sex de facto partners can access remedies under family law legislation in the event of a breakup. Generally, the legal recognition of a de facto relationship must first be established to access certain provisions under the Family Law Act, and we can assist with this process.

What is a de facto relationship?

The Family Law Act provides that 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.

Several factors will be considered to determine the existence of a de facto relationship including the length and nature of the relationship, financial dependence or interdependence, the care and support of children, whether the relationship was registered under state law and the perception of the relationship by family, friends, etc.

Generally, parties to a de facto relationship may have property matters determined by the Federal Circuit and Family Court of Australia 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.

The Family Law Act and de facto relationships

Matters concerning children of a de facto relationship are dealt with under the Family Law Act.

The jurisdiction of the Act also applies to de facto couples who separate and seek financial and other orders. A party to a de facto relationship may ask a court to make an order about financial matters after the breakdown of a de facto relationship. Financial matters include:

• property settlements
• spousal maintenance matters
• superannuation splits

Any court proceedings for a property settlement must be commenced within two years of the de facto couple separating.

The legal relevance of a de facto relationship

If you have recently separated from your de facto partner and want advice on dividing your property or arranging the care of shared children, we can help.

If you are in a stable de facto relationship, we can also provide guidance on the legal implications, and propose steps you may wish to consider to help protect your financial interests in the event of a breakup.

Some de facto couples choose to make a financial agreement (also referred to as a pre-nup or cohabitation agreement) to set out how their property should be divided if their relationship breaks down in the future. This can be beneficial for couples who are in a new relationship but have children from a former relationship for which they want to secure their inheritance.

All relationships are different, and plans need to take into account the respective needs of the partners and their financial circumstances, while understanding the impact that the law would otherwise have on a de facto relationship. It is wise to consider these matters while a relationship is sound rather than after it breaks down.

We can explain the legal effect of your relationship and help you and your partner plan ways to ensure that your property is divided or left as you intend should your relationship break down in the future.

If you need assistance, contact [email protected] or call 03 9546 8155 for expert legal advice.