De Facto Couples
De facto relationships are defined as those between two people who are not legally married or related by family, but who live together on a genuine domestic basis. The primary legislation governing de facto relationships is the Family Law Act 1975 (Cth). Under this Act, the same legal rights and obligations that apply to married couples are extended to de facto couples, provided they meet certain criteria. These criteria typically include a minimum period of cohabitation, financial interdependence, and the existence of a genuine relationship.
Recognition of De Facto Relationships
There is often confusion about the definition of what constitutes a de facto relationship, something which is made more difficult because different definitions are used for different purposes. For example, for Centrelink purposes, a couple is considered to be in a de facto relationship from the moment they start living together, while under migration law, parties must be able to show that they have been living together for a period of 12 months or longer.
Under the Family Law Act 1975, the rules are even less straightforward. Each relationship is evaluated on a case-by-case basis, with the duration of the relationship being only one of the factors. Broadly speaking, a de facto relationship is said to begin after two years together. However, the family court will also have regard to whether or not a sexual relationship existed, whether the couple have any children together, whether they lived in the same home, shared finances and property, were known by other people to be a couple and expressed a mutual commitment to a shared future. The Courts have made it clear that it is not a prerequisite for all of these factors to be present nor will one factor necessarily be given more weight than another.
To ensure legal recognition and protection, a de facto couple may choose to enter into a formal agreement known as a “de facto agreement” or “cohabitation agreement.” Alternatively, a couple may enter into a Binding Financial Agreement to clarify property ownership and financial arrangements in the event of a relationship breakdown.
Property Division
One of the most significant aspects of de facto relationships law is property division. If a de facto relationship breaks down, the courts have the power to divide the couple’s assets and liabilities in a similar manner as in divorce cases. The duration of the relationship, financial contributions, and future needs of the parties are taken into account when determining a fair division of property.
De facto couples can also seek financial support (known as “maintenance”) from their former partner if they are unable to adequately support themselves. This can be particularly relevant in cases where one partner has sacrificed their own career or earning potential for the benefit of the relationship.
Parenting
When it comes to children, the law treats de facto and married couples equally. The Family Law Act provides for the protection and welfare of children in de facto relationships. The best interests of the child are the paramount consideration in decisions regarding living arrangements, visitation, and child support.
Forward Planning for De Facto Partners
Being in a de facto relationship as defined by the Family Law Act is an important consideration when it comes to structuring your financial affairs, your property, and estate planning. We can explain the legal effect of your relationship and help you and your partner plan ways to ensure that your property is left as you intend in your estate plan, or divided by mutual agreement should your relationship come to an end.
To find out how we can help you, email [email protected] or call 03 9870 3252 for a confidential discussion Fiona, an experienced family lawyer in Ringwood.