If you’re wondering whether your current partner could be considered your de facto spouse, then you may wish to keep on reading. In Australia, parties determined to be in a de facto relationship for the purposes of family law proceedings have the same rights and entitlements as married couples. Likewise, they have the same obligations, and this can be particularly important when it comes to property settlement after separation.
When might I be considered to be in a de facto relationship?
Under the Family Law Act 1975 (as amended) (Cth), a de facto relationship between two people (regardless of gender) may exist if:
- they are not married;
- they are not related; and
- they are living together on a “genuine domestic basis”.
If you meet this test and have lived with your partner for at least two years, the relationship is likely to automatically meet this threshold of “being in a de facto relationship” under the Family Law Act.
Even if a couple have lived together for less than two years, they may still be considered a de facto couple by a Court if the following factors exist, such as:
- they have a child or children together;
- there is jointly owned real estate;
- either party has made substantial contributions to the property owned by the other;
- the relationship has been legally registered;
- there is intermixing of the parties’ finances.
Notably, the Court has discretion in determining if a de facto relationship exists or not.
What does a “genuine domestic basis” mean?
Not all de facto relationships will be the same, and the circumstances in which there is a “genuine domestic basis” for the relationship can vary too. Parties may be in a de facto relationship even if they do not meet all of the above criteria. For example, you do not need to have had a child to be in a de facto relationship. Nor do the parties necessarily need to have purchased property together to be in a de facto relationship.
It’s possible to be involved in more than one relationship at the same time too. There have been occasions where individuals have been in multiple de facto relationships at once, or been involved in a de facto relationship with someone whilst still having a marital spouse.
If you’re unsure whether you’re in a de facto relationship or if the relationship you were in was de facto, our family lawyers can provide advice to help clarify the issue.
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De facto relationships and property settlement
If parties are found to be in a de facto relationship, they have the same rights and entitlements as married couples when it comes to a property settlement once they separate.
In some cases, parties will enter a financial agreement (sometimes called a pre-nup) either before or during their de facto relationship to formalise the terms of their property settlement agreement should they separate. These types of financial agreements allow the parties to determine what will happen to their assets if they separate in the future and may involve each party protecting their individual assets or superannuation entitlements.
In the absence of a financial agreement, either party may have a claim against the other to advocate for a property settlement division after they have separated. A property settlement division can detail how the assets, liabilities, financial resources and superannuation entitlements held both jointly and individually will be divided between the parties in a fair way.
If the parties reach an agreed settlement, the terms can be formalised in a legally binding Application for Consent Orders and Consent Minutes of Order or a Binding Financial Agreement. A small number of parties who cannot reach an agreement may commence litigation in the Federal Circuit and Family Court of Australia for property settlement orders.
De facto relationships and spousal maintenance
Spousal maintenance is financial support that is paid by one party of a relationship to the other after separation, in circumstances where the receiving party is unable to support themselves financially to the same standard they enjoyed during the relationship.
Similar to property settlement after separation, spousal maintenance entitlements (for the party receiving payments) and obligations (for the party making payments) are the same whether you are married or in a de facto relationship.
You can learn more about spousal maintenance in our earlier blog, “What is Spousal Maintenance?”
How can a family lawyer help?
If you would like to discuss your situation in more detail, you can book a free no obligation phone consultation with one of our lawyers. We assist separated couples across Australia with all aspects of separation and family law.
Booking a consultation
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