De Facto couples have the same rights, responsibilities and legal protection as married couples under the Family Law Act in Australia.
But more stringent definitions mean that couples may unknowingly fall into a relationship — something that can have legal and financial consequences for the unwary. If you separate, your ex-partner may be able to claim a portion of your assets. Negotiating this can add to the emotional trauma of the initial separation.
You have the same rights as a married couple under the Family Law Act. Find out all you need to know.
Changes to state and federal relationship law over the last few years give de facto couples the same rights, responsibilities and legal protection as married couples.
At Family Law, our team will help you understand your legal rights as a couple. We can help you draw up a financial agreement that sets out how you will divide joint assets if the relationship goes awry. Or we can help you negotiate a separation agreement if you’ve separated prior to 1st March 2009.
If you would like to read the relevant sections of the legislation in regard to Divorce Property Settlement please go to the Family Law Act. For more Binding Financial Agreements for information on Prenuptial Agreements.
Please reference Sections 90R & 90 S.
We support you with representation, advocacy, mediation or collaboration to help you to attain your best outcome regarding parenting, division of assets and spousal maintenance as painlessly and inexpensively as possible.
New de facto legislation is incorporated in the Family Law Act and came into effect on 1 March 2009.
A de facto relationship is defined under section 4AA of the Family Law Act:
MEANING OF DE FACTO RELATIONSHIP
- A person is in a de facto relationship with another person if:
- the persons are not legally married to each other; and
- the persons are not related by family (see subsection (6)); and
- having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Working out if persons have a relationship as a couple
- Those circumstances may include any or all of the following:
- the duration of the 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 ;
- the degree of mutual commitment to a shared life;
- whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
- the care and support of children;
- the reputation and public aspects of the relationship.
- No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
- A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
- For the purposes of this Act:
- a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
- a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
The legislation allows for the Family Court and Federal Circuit Court to deal with financial issues arising from a relationship.
De facto couples under the new legislation are able to enter into financial agreements regarding assets acquired:
- before and during the relationship; as well as
- after the relationship has ended.
This part of the de facto legislation in the Family Law Act only applies to partners in de facto couples who:
- separate after 1 March 2009;
- enter into a financial agreement; or
- seek Consent Orders from the Family Court.
Parties who separate prior to 1 March 2009 can, by the consent of both parties, elect to have the matters dealt with in the Family Court. If you separated from your partner prior to 1 March 2009, the provisions of the Property Law Act 1974 (Qld) will apply.
Separation prior to 1 March 2009 – De facto property matters remain under the State Property Law Act and are dealt with in the State Supreme and District Courts.
Note: Applications relating to the State legislation must be made within a period of 2 years after the date of separation.
FAMILY COURT – CHILDREN AND FINANCIAL ISSUES FOR DE FACTO COUPLES
If you and your partner cannot agree on the parenting of your children or how to divide the property, you may have to go to court unless you attempt a form of alternative dispute resolution. However, the Court cannot make a decision in relation to property of a de facto relationship if the couple have not been in a relationship for more than 2 years.
If you do take your property dispute to court, the judge will make Orders for you and your partner to split your assets in a way that it decides to be fair and reasonable in the circumstances.
The decision of the Court will be binding and if you are not satisfied with the outcome, you will need to appeal the decision in the Family Court of Appeal. Even if you or your partner were to die after the Court has made the Property Order, the Order could still be enforced against the deceased estate.