Separation and De-Facto Relationships

The make-up of the modern household is quite different to what it used to be. As a result, the definition of relationships has also changed in the eyes of the law. Today, de facto couples (same sex and heterosexual) are entitled to almost the same rights and claims when it comes to Family Law Matters in relation to property, financial settlements, maintenance and arrangements for the children of the relationship.

What is a De Facto Relationship?
The definition of a de facto relationship is outlined in the Family Law Act (“the Act”). The law requires that two people have a relationship as a couple living together on a genuine domestic basis. The relationship is not a de facto relationship if the couple is legally married to one another or if they are related by family.

There are several criteria’s to be considered under the Act to determine whether a relationship meets the definition of a De Facto relationship. They are as follows:-

• The length of the relationship;
• The circumstances of their common residence (e.g. how long they have lived together);
• Whether a sexual relationship exists;
• Financial dependence on each other;
• How the people own their property (e.g. together or separately);
• Care and support of children;
• Reputation and whether the relationship is publicly known.

That being said, there is no singular meaning of a de facto relationship. Each case is examined individually and the specific circumstances of the relationship taken into consideration. You can also be considered to be in more than one de facto relationship at a time. The Family Law Act 1975 specifically acknowledges that a person can be in a de facto relationship regardless if they are in another de facto relationship. Meaning that a de facto relationship does not need to be mutually exclusive.

What Am I Entitled to If My De Facto Relationship Breaks Down?
If your de facto relationship comes to an end, you have up to two years to apply for financial orders (property settlement). If you seek to apply after this two year period, you will need to first obtain the Court’s permission.

De facto couples have access to the same legal systems as a legally married couple and can apply for various types of court orders including parenting, child support, maintenance and the division of assets, including superannuation.
Upon the breakdown of a de facto relationship, there are three ways to sort out how to divide property:

1. By entering into a Binding Financial Agreement without court involvement;
2. Through an agreement formalised by the court through an application for Consent Orders; or
3. By applying to the court for orders.
   If you have separated from your partner and are unsure as to whether your relationship falls under the definition of a ‘de facto relationship’ feel free to contact one of our experience family lawyers for further advice regarding de-facto relationships in the eyes of the law in Australia to ensure you are aware of your entitlements after separation.

Have you separated from your De Facto partner? Are you about to separate from your De Facto partner? Should you wish to discuss your options with one of our experienced Family Law Team contact Solari and Stock Miranda on 8525 2700 or click here to request your free 30 minute appointment.
Article written by Nikita Ward
Photo by Bruno Aguirre on Unsplash