Family Law & De Facto Relationships

Have you been living or are living in a de facto relationship and want to understand what the law says? This podcast may answer your questions.

Melissa-Muir

Family Law & De Facto Relationships

It should come as no surprise that an increasing number of people not only live with each other prior to marriage, but many choose not to marry at all. So, in the case of de facto relationships and family law, what happens when the couple are in dispute.

In this podcast, Senior Associate and Accredited Family Law Specialist, Melissa Muir unpacks the complex topic.

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Transcript

Interviewer:

How are De facto couples treated in the Family Law Courts regarding dividing property?

Melissa:

De facto couples, including same-sex couples, who separate now have generally similar rights and obligations in relation to property and maintenance matters under the Family Law Act as married couples who separate. If your relationship broke down after 1 March 2009 (or 1 June 2010 for South Australian couples), you can apply to the Court under the Family Law Act for orders in relation to property or spousal maintenance. There are some subtle minor differences however to how they are treated, so it is best to seek expert legal advice early from a qualified family law specialist regarding your situation.

Interviewer:

Is there any requirement for how long you need to live with someone before you can make a claim for property? For instance, do you have an automatic right to property just from moving in together?

Melissa:

No, there are a number of requirements under the Family Law Act in order to make a claim for a property adjustment. The total period of the de facto relationship must have been at least 2 years, or there is a child of the de facto relationship, or the applicant made substantial contributions (such as putting a deposit on a home, or making mortgage repayments), or the relationship was registered.

Interviewer:

How is a de facto relationship defined? In this regard, could someone make a claim against their flat mate’s property, or a brother make a claim against their sister? And what about partners who don’t live together 7 days a week, for instance because of work reasons?

Melissa:

The Family Law Act states that a person is in a de facto relationship with another person if they are not legally married to each other. This does not stop someone being legally married to another person, just not married to the person they are making a claim against.

Secondly, that they are not related by family – so this would stop the situation of for example siblings making claims against each other, or children making claims against parents.

Thirdly, that having regard to all of the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Interviewer:

I suppose it is easy to prove whether two people are married, or related by family. But how can you prove the last point – that they are living together as a couple?

Melissa:

There are a number of factors that the Court takes into consideration, which are set out in the Family Law Act, which are looked at all together. These include:

The duration of the relationship;

The nature and extent of their common residence – that is, do they live together? However, there are no set number of nights per week or month;

Whether a sexual relationship exists – although just because there is doesn’t mean they are in a de facto relationship, and just because there isn’t doesn’t mean they aren’t in a de facto relationship;

Whether there is any financial dependence or independence between them – do they share joint bank accounts, or does one of them provide financial support for the other?

The ownership, use and acquisition of their property. In this regard, have they bought properties together and registered them in joint names? Do they both use or enjoy assets together?

The degree of mutual commitment to a shared life. This can be tricky, as sometimes one person has a different expectation of the relationship as the other person – but evidence of this can be cards and letters between the couple. Whilst not definitive, an engagement proposal can also help to add weight to this.

Whether the relationship is or was registered. Not many people know this, but it is possible to register a de facto relationship under some State laws.

The care and support of children. The mere fact that there are children doesn’t necessarily mean that a couple is living in a de facto relationship, but it certainly can help to support the position that they were, particularly if they are both caring for the children together.

Finally, the reputation and public aspect of the relationship – that is, do other people perceive them to be in a de facto relationship. Do they attend social gatherings together? 

Interviewer:

Is it enough that just one of these factors are met, or do they need to meet a certain number in order to be classified as living in a de facto relationship?

Melissa:

Just because someone meets one of these factors doesn’t mean that they are in a de facto relationship and just because something isn’t met doesn’t mean they aren’t in a de facto relationship. Whilst there is no set number of factors that need to be met, obviously the more boxes that are ticked so to speak, the more likely that there is a de facto relationship. Each matter is different and decided on their own set of facts.

Not only is this really important to find out whether a de facto relationship existed, but also to work out when it ended, and therefore whether it comes under the Family Law Act.

It is a really good idea to get legal advice about your own individual matter to see how the law would apply to you.

Interviewer:

Is there anything you can do if your de facto relationship broke down before 1 March 2009?

Melissa:

You and your former partner can both agree that the matter should be dealt with under the Family Law Act, however you would both need to seek independent legal advice in relation to that. If your former spouse didn’t agree, then an application would need to be made under the relevant State legislation.

However, there are time limit restrictions regardless of which Act the matter is dealt with.

Interviewer:

What do you mean by time limit restrictions?

Melissa:

Under the Family Law Act, there is a time limit of 2 years from the date of separation of the de facto relationship in which to make an application for property orders. That time can only be extended if the Court is satisfied that hardship would be caused to a party or child if the extension was not made – for instance, where the majority of the assets are in the name of the de facto husband and the de facto wife and child are in a far inferior financial position.

Whilst time limits can be extended by consent in the case of married couples, unfortunately that does not apply in relation to de facto relationships. Therefore, even if you and your former de facto partner agreed to extend the time, the Court would still need to be satisfied about the hardship requirement.

There are also time limit restrictions under the relevant State legislation. And given that your relationship would need to have broken down before 1 March 2009 in order to invoke that legislation, we are now seeing less and less of these types of matters, although they are not unheard of.

Interviewer:

What would be your take-away message for someone in a de facto relationship considering separating, or who has separated?

Melissa:

I strongly recommend getting legal advice early. It can often be useful getting legal advice even in the early stages of the relationship, even before you move in together. It is important to know your legal rights and obligations under the Family Law Act and what the legal ramifications could be if you were to separate.

 

 

 

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