DE FACTO LAW

Many people choose simply to live together rather than marry. However, the law now treats de facto couples almost exactly the same as married parties.

The same law which applies to de facto heterosexual couples also applies to same sex relationships.

How Do You Know If You Are Already A De facto Couple?

Section 4AA of the Family Law Act gives some pointers as to what would be looked at to answer this:

a) The length of your relationship;

b) Whether you share a home;

c) Whether you have a sexual relationship;

d) Your financial arrangements;

e) What property you own/use together;

f) How committed you seem;

g) Whether the de facto relationship is officially registered;

h) Care and support arrangements for any children;

i) How others view your relationship.

Your relationship may be considered de facto even if:

  • You are in more than one de facto relationship at the same time; or
  • You are already legally married to someone else.

There is no one “clear cut” to what defines a de facto relationship. The Court look at the whole circumstances to decide this issue. If the Court determines a de facto relationship exists, then the Family Law Act applies. On the other hand, if the relationship is characterised as something else, then very complex laws of trust and equity regulate the affairs of the persons concerned.

What Sort of Court Orders Can De Facto Parties Seek?

De facto partners can:

  • Bring property proceedings;
  • Bring spousal maintenance proceedings, once separated;
  • Apply for children’s orders;
  • Apply for child maintenance and adult child maintenance (as well as seeking child support via the Child Support Agency where appropriate);
  • Enter into (Binding) Financial Agreements;

– just as their married counterparts can.

Some Specific Legal Requirements For De Factos

2 Year Rule –

  • S.90SB of the Family Law Act requires a de facto couple to be together for a total period of at least 2 years if they want to apply to the Court for a property adjustment.

However, this rule can be waived if:

  • There is a child of the de facto relationship; or
  • The Court thinks it would be seriously unjust to deny access to the Court; or
  • If the de facto relationship is registered.

Geographical Requirement –

  • S.90SD of the Family Law Act flags some preliminary jurisdictional requirements around where parties live for at least part of the relationship and where they live when the relationship breaks down.
  • This would be relevant for example, for Australians living overseas during or at the end of their de facto relationship, who were seeking Court Orders in Australia.

Time Limit –

  • S.44(5) of the Family Law Act states that de facto parties must make their application to the Court for property or maintenance within 2 years of the relationship breaking down.
  • However, in certain limited circumstances, this period can be extended with the Court’s permission:
  • On grounds of hardship to the late party or a child; or
  • If the Applicant was relying on Government assistance when the 2 year period ended.

Children of De Facto Couples

Importantly, where children are involved there are no such preliminary hurdles for de facto applicants.

Subject to these preliminary legal requirements, de factos are treated by the Court in the same way as married parties who want Property Settlement or Children’s Orders .

Registering Your Relationship

Some de facto partners choose to register their relationship with the Registrar of Births, Deaths and Marriages. Not only does this serve to demonstrate their commitment to the relationship but it helps prove that they are in a domestic relationship. This may be useful if, for example:

  • The parties separate and want to take Court proceedings against each other for property or children’s Orders or maintenance;
  • If either of them dies during the relationship and the survivor wants to claim superannuation death benefits or inheritance rights or to be fully involved in medical decisions during an illness;

The Family Law Team at Pearce Webster Dugdales has extensive experience in this area of the law and will be happy to help you work through all relevant issues.