Married or a De Facto? Does it make a difference?

In family law in New South Wales, both marriages and de facto relationships are recognised. However, there are some differences in how they are treated under the law.

The key differences are as follows:

1. Legal Recognition

Marriage is a formal legal union between two people and requires a legal ceremony and registration. A de facto relationship on the other hand is a relationship between two people who live together on a genuine domestic basis, but are not legally married.

2. Property Settlements

When it comes to property settlements, both married and de facto couples can apply for property settlements under the Family Law Act 1975 (Cth). However, there are some differences in the criteria for each.

For married couples:

I. Eligibility: Married couples can apply for property settlement at any time after separation, but must do so within 12 months of the divorce being finalised.

II. Process: The court considers various factors, including the contributions of each party (both financial and non-financial), the future needs of each party, and the assets and liabilities of the parties.

Property Settlement for de facto couples:

I. Eligibility: De facto couples must meet certain criteria to apply for property settlement:

• The relationship lasted for at least two years.

• There is a child of the relationship.

• One party made substantial contributions, and a failure to make an order would result in serious injustice.
  

3. Spousal Maintenance

Both married and de facto partners can apply for spousal maintenance if they cannot support themselves adequately and the other party has the capacity to pay.

4. Separation and Divorce

 For married couples, marriage requires a formal divorce process to legally end the marriage, which involves demonstrating that the marriage has irretrievably broken down. A de facto relationship does not require a formal divorce process. The relationship ends when the couple separates.

5. Parenting Orders

 The same principles apply to both married and de facto couples regarding parenting orders, with the best interests of the child being the paramount consideration.

Overall, while both types of relationships are recognised under family law, the processes and criteria for certain legal matters can differ. The eligibility criteria and time limits differ between married and de facto couples. It is important for parties to be aware of these differences to ensure you take timely action. To discuss your situation with one of our Family Law Team contact Solari and Stock today on 8525 2700, or click here to request an appointment.

Our experienced team of Family Law Solicitors include Riccarda Stock, Nicole Quirk, Shweta Kumar, Nikita Ward and Kirstin Attard.

Article by Shweta Kumar
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