Family law is an area where myth and fact often get blurred as everyone has an opinion on how divorce works, who gets what and whether the courts favour one party over another.
This is just as true when talking about de facto relationships. To help clear things up we’ve come up with some straight forward answers to some of the common questions about de facto relationships.
What does “de facto” mean anyway?
The term “de facto”, which is Latin for “in fact”, is used to describe practices which exist in practice but are not legally authorised. So a relationship is deemed to be “in fact” similar to a legally authorised marriage.
So de facto couples have the same rights as married couples?
Yes. In Australia, if you and your partner are deemed to have been in a de facto relationship, you essentially have the same legal rights and responsibilities as a married couple when it comes to family law matters including property, spousal maintenance and financial settlements.
When is a relationship recognised as a de facto relationship?
The Family Law Act 1975 sets out the laws defining a “de facto relationship”. You and your partner will be considered to be in a de facto relationship if you have had a relationship as a couple living together on a “genuine domestic basis”. This is a type of marriage certificate for those who don’t want to be married. A de facto relationship can exist between two people of the same or opposite sex. You will not be considered de facto if you are legally married to each other or related to each other.
What happens when a de facto relationship breaks down?
If your de facto relationship breaks down, you have two years from the date of separation to apply to the Family Law Courts for property orders. If you try to apply after the two year period has expired, you will need to obtain the Court’s permission to do so.
The Family Law Courts can make property orders in respect of a de facto relationship if it is satisfied that any one or more of the following criteria apply:
1. the period of the de facto relationship was at least 2 years
2. there is a child of the de facto relationship
3. the relationship is or was registered under a prescribed law of a State or Territory or
4. one of the partners made substantial financial or non-financial contributions to the relationship.
What if the parties disagree over whether a de facto relationship exists?
If there is a dispute about whether a couple were actually in a de facto relationship the Court will look at all the circumstances of the relationship including:
• the duration of their relationship
• the nature and extent of their common residence
• whether a sexual relationship exists
• the degree of financial dependence or interdependence, and any arrangements for financial support, between them
• the ownership, use and acquisition of their property
• their degree of mutual commitment to a shared life
• whether the relationship has been registered, in a State or Territory with laws for the registration of relationships
• the care and support of children, and
• the reputation and public aspects of their relationship.
If you would like further advice on de facto relationships, contact Kay Rhodes or Jessica Devane.
