De facto relationships and de facto separation

In recent times, it has become more common for couples to live together in a genuine domestic relationship without getting married. These relationships are often referred to as de facto relationships. A de facto relationship can be between a couple of the same sex or the opposite sex. 

As is the case with the end of a marriage, when a de facto relationship ends, de facto separation raises issues of who gets property of the couple and who will children live with. 

If you are going through defacto separation, it is important to seek legal advice from an experienced and skilled de facto lawyer to determine what your rights and entitlements are. Learn more about our team, read our many positive client reviews and Contact Lawpoint today for an experienced de facto lawyer and clear legal advice. 

What is a de facto relationship?

A de facto relationship is defined in the Family Law Act 1975 as a relationship between a couple who live together on a genuine domestic basis. Not all couples who live together will meet the definition of a de facto relationship. 

Section 4AA(2) of the Act sets out a number of factors which the Court will consider in determining whether a relationship was a de facto relationship, including: 

  • the duration of the relationship; 
  • the nature and extent of the couple’s common residence;
  • whether a sexual relationship exists; 
  • the degree of financial dependence or interdependence, and any arrangements for financial support, between the couple;
  • the ownership, use and acquisition of their property;
  • 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;
  • Such other matters as the Court considers relevant.

It is possible to register your relationship in various states including in NSW. You can register your de facto relationship on the NSW government’s Relationships Register. 

It is not necessary to establish each and every one of the above criteria in order to meet the test for a de facto relationship. The Court will consider such matters and attach such weight to any matter as may seem appropriate to the Court based on the individual circumstances of each case. 

Can property rights be adjusted after de facto separation?

The Family Law Act 1975 provides that parties to an eligible de facto relationship which has broken down can apply to the Court to have financial matters determined in the same way as married couples. 

However, before the Court has jurisdiction to determine property matters in a de facto separation, the Court must be satisfied that you meet all of the following four criteria: 

1. you were in a genuine de facto relationship with your former partner which has broken down;

2. you satisfy at least one of the following criteria

  • That the period for the de facto relationship is at least 2 years; or
  • That there is a child in the de facto relationship; or
  • That the relationship is or was registered under a prescribed law of a State or Territory; or
  • significant contributions were being made by one party and the failure to issue an order would result in a serious injustice

3. you have a geographical connection to NSW; and

4. your relationship broke down after 1 March 2009.

If you meet the legal definition of a de facto relationship and you satisfy the criteria, then the Court has jurisdiction to make property orders following de facto separation.

What does the Court consider?

There is no distinction between the issues that the Court considers in the case of de facto separation or on the breakdown of a marriage.  

Property matters are complex and it is therefore essential that you obtain timely advice from an experienced de facto lawyer or family law solicitor, to ensure that you obtain all of your entitlements. 

You can more about property orders from our property settlement lawyers.  

Strict time limits apply for de facto separation property orders

A party must apply to the court for a de facto property settlement within two years after the date that the defacto relationship ended. Although the Court has the power to extend this two year time limit in certain circumstances, you should obtain advice from a defacto lawyer as soon as possible after your de facto separation to ensure that any action is taken well before the time limit expires. You should not assume that the Court will extend the 2 year time limit. 

What about parenting matters?

Parents of children who are going through a de facto separation have the same rights as parents of children of a marriage. 

The most important factor that the court must consider when deciding who a child lives with is what is in the best interests of the child. 

The law is designed from a starting point that every child has a right to know both their parents. Equally, every child has the right to be protected from harm. Unless there are issues with violence or abuse, the law expects that each parent with have equal parental responsibility.  

You can read more about parenting orders from our child custody lawyers. 

What if you are contemplating starting a de facto relationship?

If you are contemplating starting a de facto relationship, you should consider entering into a Binding Financial Agreement, which helps to protect your assets in the unfortunate event of a de facto separation. 

You can read more about a binding financial agreement from our binding financial agreement lawyers 

Lawpoint’s highly regarded and experienced team of defacto lawyers can provide you with advice on all of your family law rights, whether you are contemplating a de facto separation or have already separated. Contact Lawpoint today to discuss your situation. 

Why choose Lawpoint?

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