Your Cheat Sheet to De Facto Relationships
Am I in a de facto relationship?
If you’re asking that question, it’s likely you’re not. A de facto relationship is a relationship in which a couple lives together on a genuine domestic basis. The term is defined synonymously across all states and territories – under the Family Law Act 1997 (WA) in Western Australia, and under the Family Law Act 1975 everywhere else.
These relationships can include anyone of any gender or sexual orientation. While a married couple or family members cannot be considered in a de facto relationship, a married person may be in a de facto relationship with another person with whom they are not married.
A de facto relationship may only exist if the pair has lived together as a couple for two years without separation. However, if children or other substantial contributions to joint property exist, this time stipulation may be excepted.
Determining a de facto relationship
Determining whether a relationship is de facto or something less serious is primarily circumstantial. Therefore, a series of considerations have been formulated to aid the Court in its assessment. These include:
Whether the couple are married;
How long the couple have been together in their relationship;
Whether the relationship was sexual in nature;
The degree of a mutual commitment to a shared life;
Whether the relationship is registered in an Australian state or territory;
Property ownership and use;
Care and support of children;
The public aspects of the relationship, such as reputation.
De facto relationships are also not mutually exclusive. You may be considered to be in more than one de facto relationship at a time, provided all relationships meet the definition following the Court’s considerations. In light of the considerations, what makes a de facto relationship can be broad and multitudinous, relying on the specificities of the case. It is a complex area of law, which our specialist family lawyers have the knowledge and experience to assist.
How to register a de facto relationship
You may register a de facto relationship through a state or territory’s Registry of Births, Deaths and Marriages, which will provide you with a certificate to use as proof when required. Following registration, rights for property division may arise regardless of whether or not the couple has lived together for two years.
Separation in a de facto relationship
For the division of property (assets, liabilities and superannuation), property settlement can be either agreed upon by the parties or determined by a court.
Before you can make an application to the courts you need to ensure that you meet the definition of de facto and the considerations above. From there, de facto relationship matters are determined the same way as a married couple getting divorced. The courts will not make an order unless they consider it just and equitable to do so.
In Australian states and territories apart from WA, separated de facto couples can apply to either the Family Court or the Federal Circuit Court. Ordinarily, application should be made to the Federal Circuit Court unless the matter involves complex family law issues such as:
International child abduction or international relocation;
Specialised medical procedures for a child or children;
Contravention of parenting orders;
Serious allegations of sexual or physical abuse of a child or children, or serious family violence; or
Other complex questions of law
Regardless of jurisdiction, prospective applicants must apply for financial orders within two years of separation. Beyond this, they will need to seek permission from the Court to apply.
Death of a de facto partner
Similarly, parties to a de facto relationship have the same rights as married couples in the case of one partner’s death. Such rights and entitlements include:
Where no Will exists (i.e., your partner has died ‘intestate’), entitlement to a share of the estate;
If not adequately provided for, the right to challenge the Will;
If your partner dies during the course of employment, entitlement to receive compensation entitlements under workers compensation law; and
Claim social security entitlements.
Need more information about de facto separation? Our team is highly experienced in working with de facto couples following separation to assist in resolving both property settlement and parenting disputes. Contact us today.