Defacto Relationships

What is a De Facto Relationship?

A de facto relationship is defined by the Family Law Act 1975 as a relationship between two people, who are not related or legally married, and who live together on a genuine domestic basis.

This applies in all states and territories of Australia except in Western Australia.

As Western Australia has not referred its power to deal with property and maintenance issues to the Commonwealth in de facto relationships, the law of Western Australia applies there.

What Constitutes a De Facto Relationship?

Whether there is a de facto relationship would be determined based on if the parties lived together on a ‘genuine domestic basis.’ This determination would be made based on consideration of the particular circumstances of the relationship. Some factors which would be considered by the Court are:

1. The length of the relationship (whether the parties have lived together for a period of two years or longer)
2. Whether a sexual relationship existed
3. Whether there are any children of the relationship and the care of those children
4. The degree of financial dependence between the parties and mutual commitment towards a shared life
5. The ownership, use and acquisition of the parties’ property
6. The reputation and public aspects of the relationship
7. The degree of mutual commitment to a shared life

In the past the Court has made it abundantly clear that it is not necessary for all the above factors to be present for the Court to determine that a de facto relationship existed.

How Do I Register a De Facto Relationship?

If the parties wish to confirm that they are in a de facto relationship they can register their relationship if they reside in one of the following states or territories and meet the residency requirements:

• • Queensland
  • New South Wales
  • Victoria
  • Tasmania
  • Australian Capital Territory
  • Norfolk Island

A de facto relationship can also be registered with Centrelink and, if either party is receiving government benefits, it is often a requirement that Centrelink be advised that a de facto relationship has been established.

What Is The Purpose Of A Binding Financial Agreement?

It is possible for the parties to a de facto relationship to protect their property from future claims by the other party if the relationship breaks down. Parties to a de facto relationship can enter into a Binding Financial Agreement (BFA) which will identify the assets which each of them holds at the time that the Binding Financial Agreement is made and sets out how the property held by the parties is to be divided if the relationship breaks down.

The parties can enter into a Binding Financial Agreement prior to the start of a de facto relationship or during a de facto relationship. When a Binding Financial Agreement is made and the de facto relationship subsequently breaks down, the property will be divided according to the terms of the Binding Financial Agreement rather than through lengthy and expensive legal proceedings.

Implications of a De Facto Relationship?

Many people are not aware that, when they commence living with another person, they are placing themselves at risk of having a portion of their assets awarded to the other person if the relationship breaks down. If it is determined that the parties were living in a de facto relationship, and they had not entered into a Binding Financial Agreement either before entering into the relationship or during the relationship, the division of the property of the parties would be determined according to the Family Law Act.

The Family Law Act contains several provisions which, in effect, provide those people in de facto relationships with the same rights as married couples with respect to the division of property following the breakdown of the relationship. These provisions aim to safeguard those couples who cohabitate but do not enter into a relationship. A property settlement between parties to a de facto relationship would take into account all of the property held by the parties jointly and held by each of the parties individually. The property that would be considered includes all assets which are owned, whether wholly or in part, all debts which are owed and all financial resources which are held, such as superannuation accounts, trust funds, and, in some circumstances, future inheritances.

What Happens When a De Facto Relationship Breaks Down?

It is extremely common for parties to unknowingly enter a relationship which meets the necessary criteria for a de facto relationship. Doing so leaves them exposed to potential legal action against their assets if the relationship breaks down.

If you are unsure whether your relationship may constitute a de facto relationship, it is important to obtain legal advice at the earliest possible opportunity.

Effect on Children When A De Facto Relationship Ends?

Matters affecting children of the De Facto Relationship are treated exactly the same as matters affecting children of a marriage. These matters include who the child will live with, how much time and when they will spend time with the other parent.

If you would like to discuss your De Facto Relationship case with us, contact us today for an initial consultation.