Being in a de facto relationship means that you have certain legal rights and responsibilities in relation to your partner (similar to if you were married), so these are some things you need to know.
Are you in a de facto relationship?
You will be in a de facto relationship with another person if you:
- are not married to each other; and
- are not related by family; and
- have a relationship as a couple living together on a genuine domestic basis (having regard to all the circumstances of the relationship).
The circumstances for working out if you and your girlfriend, boyfriend or partner have a de facto relationship may include any or all of the following:
- How long you’ve been together as a couple.
- The nature and extent of your common residence.
- Whether there is a sexual relationship.
- The degree of your financial involvement or financial support.
- The ownership and use of your property.
- The degree of mutual commitment to a shared life together.
- Whether your relationship is under law.
- Your care and support of children.
- The reputation and public aspects of your relationship.
What if you’re in a same sex relationship?
You can be in a de facto relationship whether you’re both the same sex or of different sexes. A de facto relationship can exist even if you’re married to someone else or in another de facto relationship.
Separation from a de facto relationship – What does it mean for you?
As a partner in a de facto relationship, you have similar financial rights and responsibilities (including property, spousal maintenance and child support) to a married couple when you separate.
What if I make an agreement with my de facto partner?
If you can come to an agreement between both of you about how your assets will be divided after separation, then that is great and will save time and money. Many de facto couples are able to do this. If you can, then the best thing to do is to get independent legal advice from a family lawyer to make your agreement legally binding in the form of Consent Orders, which are registered with the court. If you already have a binding financial agreement in place then you will divide assets in accordance with that agreement. You can also make a Child Support Agreement between each other, including a Shared Parenting Plan.
What if my de facto partner and I can’t come to an agreement?
If you and your de facto partner are unable to reach an agreement, then you may apply to the court to determine a property settlement and/or spousal maintenance. Remember that nobody can guarantee you what a court will decide, they can only provide an educated opinion as each case will be decided on the individual circumstances.
When it comes to applying for property settlement and/or spousal maintenance orders, the Family Law Act only applies to you as a partner in a de facto relationship if you can show:
- your the de facto relationship has lasted at least 2 years in total (there may be periods on and off), or
- you have a child with your de facto partner, or
- you have made substantial financial or non-financial contributions and serious injustice would result to you if an order wasn’t made, or
- your de facto relationship has been registered.
For all States except WA, you’ll also need to prove that separation occurred after 1 March 2009 and you lived at least one-third of your de facto relationship in an Australian State other than WA.
In WA, a partner who has separated from a de facto relationship after 1 December 2002 can go to the Family Court of Western Australia to resolve family law property matters under the Family Court Act 1997.
Property settlement: Factors the Family Court considers
When deciding a fair property settlement, the Family Court will consider:
- Depending on the length of the relationship and your contributions during the relationship, what you owned prior to the de facto relationship.
- What you currently have (the net value of your current assets, such as houses, shares and superannuation) and your current debts.
- Direct financial contributions made by each person during the de facto relationship (such as wages or salary and property payments).
- Indirect financial contributions made by each person during the de facto relationship (such as gifts and inheritances).
- Non-financial contributions made by each person during the de facto relationship (such as caring for children or the family, domestic and household improvement work).
- Your future needs (such as care of any children, earning capacity, respective available financial resources available, age and health).
Spousal maintenance: Factors the Family Court considers
If you also make a spousal maintenance application for your former de facto partner to provide your with some future financial support, the court will consider your relative financial circumstances, and make an order if:
- you can’t adequately support yourself financially (such as because of having poor health or caring for your children), and
- your former de facto partner is able to provide you with financial support.
Final Court Orders
Once the court has taken all the considerations into account, it can make orders to facilitate its decision. This may include that the assets (such as the house or superannuation) are to be sold and split in a certain way or transferred to one de facto partner, and/or that spousal maintenance is to be paid for a period of time.
Time limit for property settlement and spousal maintenance claims
You must bring your application for property settlement or spousal maintenance against your former de facto partner within two years of the de facto relationship ending.
After that time, you can only make an application the your former de facto partner’s consent or with the court’s permission.
Know where you stand by making a Binding Financial Agreement
You and your de facto partner can make a Binding Financial Agreement before, at any time during, or after separation from your de facto relationship to agree and set out how your assets would be divided if you separated (similar to a prenuptial agreement). The Binding Financial Agreement can also cover any spousal maintenance in the event of separation.
To make your Binding Financial Agreement legally binding, both de facto partners must receive independent legal advice, and the Binding Financial Agreement must comply with certain formal legal requirements.
Binding Financial Agreement Kits
- Binding Financial Agreement (De Facto Before Living Together) – Australia except WA + Bonus Will Kit
- Binding Financial Agreement (De Facto Living Together) – Australia except WA + Bonus Will Kit
- Binding Financial Agreement (De Facto Before Living Together) – WA + Bonus Will Kit
- Binding Financial Agreement (De Facto Living Together) – WA + Bonus Will Kit
- Prenuptial Agreement Australia Kit