De facto Relationships
What you need to know
It may be evident to many couples that they are living in a de facto relationship, particularly those cohabitating on a full-time basis. For others it may not be as clear cut. Do you each have your own residence, but spend significant time at one or both premises? Has your relationship suffered periods of separation, followed by reconciliation? Do you maintain your own individual assets, but share everyday living expenses?
A 2021 decision of the Federal Circuit and Family Court of Australia, Bahan & Pinder [2021] FedCFamC2F 347 serves to remind parties that a relationship does not need to be mutually exclusive to fall within the definition of a de facto relationship, nor do couples need to be living together in a traditional 7 days per week arrangement to be living in a de facto relationship.
The Family Law Act 1975 (Cth) gives the Federal Circuit and Family Court of Australia (“the Court”) the power to make a declaration that persons are residing in a de facto relationship. The consequences that flow from such declarations can lead to financial obligations in relation to spousal maintenance and property division. Asset protection measures are available to parties to a de facto relationship and parties considering entering into a de facto relationship.
Understanding whether you are in a de facto relationship will assist you to determine what steps you may wish to take to avoid costly property settlement proceedings should your relationship break down in the future.
Are my partner and I in a de facto relationship?
De facto relationships are defined at section 4AA of the Family Law Act as:
- Persons that are not legally married to each other;
- Persons not related by family;
- Having regard to all the circumstances of the relationship, they have a relationship as a couple living together on a genuine domestic basis.
A de facto relationship includes same sex relationships and can exist even if one person is legally married to another person or in another de facto relationship.
The next step is to examine whether you have a relationship as a couple. To do this the following matters are considered:
- The duration of your relationship;
- The nature and extent of your common residence;
- Whether a sexual relationship exists;
- Whether you are financially dependant upon your partner, and what the arrangements are for financial support;
- The ownership of any property and the use made of the property and the acquisition of the property;
- The degree of mutual commitment to a shared life;
- Whether the relationship is registered; and
- If either person has a child, what arrangements are in place for their care and support.
My relationship has broken down, is my partner entitled to a share of my assets?
If you were living together in a de facto relationship for a period of at least 2 years and separate, one of you can ask the Court to determine a division of financial assets and liabilities between you.
There are exceptions to this two-year rule, for example if you have a child of your relationship, or if you have made substantial financial contributions towards an asset owned by your former partner.
Time limits
You have 2 years from date of separation to commence proceedings in Court seeking orders for an adjustment of property between yourself and your former partner.
Understanding each other’s rights, responsibilities and entitlements can assist you to make timely and cost-effective decisions if your relationship comes to an end. Engaging with a lawyer for a discussion regarding these matters without delay will assist you to establish a pathway forward and provide you with clarity and confidence in navigating legal issues arising from your relationship breakdown.
Contact our family law team to arrange a consultation to discuss your circumstances and examine the asset protection measures available to you.
If you have any queries, please contact Lisa Rees on 9612 7272
