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how to spot a de facto relationship and why it matters when breaking up

17 December 2020
brendan herbert katerina petkovska
Read Time 3 mins reading time

A person is in a de facto relationship with another person (regardless of gender), according to the Family Law Act, if they have a relationship as a couple living together on a genuine domestic basis.

The Family Law Courts may make maintenance and property orders after the breakdown of a marriage or a de facto relationship, if the former de facto relationship lasted at least two years; or if there is a child of the de facto relationship; or if a party made substantial contributions and it would be seriously unjust for the Court to not make an order.

A person in a de facto relationship that has broken down is entitled to virtually all of the same rights, responsibilities and claims in property and maintenance as a married person. The law also says that one can be in a de facto relationship while being married to or in another de facto relationship with someone else, in fact, one can be in multiple de facto relationships at the same time.

So, it’s important to understand the distinction between a boyfriend/girlfriend or ‘intimate personal relationship’ and a de facto relationship, and how the status of the relationship might impact upon the parties’ rights, and how those rights can be protected with some planning.

Whether a person is in a de facto relationship depends on the individual circumstances of the relationship.

The Family Law Act sets out the criteria used in working out whether persons have a relationship as a couple. The relevant factors are:

  1. The duration of the relationship;
  2. The nature and extent of having a common residence;
  3. Whether a sexual relationship exists;
  4. The degree of financial dependence or interdependence, and any arrangements for financial support between parties;
  5. Ownership, use and acquisition of property;
  6. The degree of mutual commitment to a shared life;
  7. Whether the relationship has been registered under a prescribed law of a State or Territory;
  8. Care and support of any children; and
  9. The reputation and public aspect of the relationship.

Because the existence of a former de facto relationship empowers the Court to make orders for maintenance and property division, and the line between ‘intimate partner’ and de facto can be blurry, the Family Law Courts are often asked to determine whether or not a de facto relationship exists, whether the factors are satisfactorily met.

It can be a complex exercise and have important consequences. Determining the existence of a de facto relationship is sometimes the first step in a Family Law litigation. A party must apply for de facto financial orders within two years of the breakdown of the de facto relationship. After that time, a party needs the Court’s permission to apply.

We assist clients in protecting their assets and avoiding future financial disputes arising from relationship breakdown, by advising them in relation to Financial Agreements.

A Financial Agreement can be entered into by a couple contemplating entering into a de facto relationship, or who are in a de facto relationship, or whose former de facto relationship has broken down.

The Financial Agreement can deal with how all or any of the property and financial resources of either or both of the parties at the time of the agreement or acquired at a later time during the relationship is to be distributed and the maintenance of either of the parties during the relationship and in the event of a relationship breakdown.

If you are unsure about the legal status of your relationship and how it might impact your rights, contact our Family Law team.

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how to spot a de facto relationship and why it matters when breaking up

17 December 2020
brendan herbert katerina petkovska

A person is in a de facto relationship with another person (regardless of gender), according to the Family Law Act, if they have a relationship as a couple living together on a genuine domestic basis.

The Family Law Courts may make maintenance and property orders after the breakdown of a marriage or a de facto relationship, if the former de facto relationship lasted at least two years; or if there is a child of the de facto relationship; or if a party made substantial contributions and it would be seriously unjust for the Court to not make an order.

A person in a de facto relationship that has broken down is entitled to virtually all of the same rights, responsibilities and claims in property and maintenance as a married person. The law also says that one can be in a de facto relationship while being married to or in another de facto relationship with someone else, in fact, one can be in multiple de facto relationships at the same time.

So, it’s important to understand the distinction between a boyfriend/girlfriend or ‘intimate personal relationship’ and a de facto relationship, and how the status of the relationship might impact upon the parties’ rights, and how those rights can be protected with some planning.

Whether a person is in a de facto relationship depends on the individual circumstances of the relationship.

The Family Law Act sets out the criteria used in working out whether persons have a relationship as a couple. The relevant factors are:

  1. The duration of the relationship;
  2. The nature and extent of having a common residence;
  3. Whether a sexual relationship exists;
  4. The degree of financial dependence or interdependence, and any arrangements for financial support between parties;
  5. Ownership, use and acquisition of property;
  6. The degree of mutual commitment to a shared life;
  7. Whether the relationship has been registered under a prescribed law of a State or Territory;
  8. Care and support of any children; and
  9. The reputation and public aspect of the relationship.

Because the existence of a former de facto relationship empowers the Court to make orders for maintenance and property division, and the line between ‘intimate partner’ and de facto can be blurry, the Family Law Courts are often asked to determine whether or not a de facto relationship exists, whether the factors are satisfactorily met.

It can be a complex exercise and have important consequences. Determining the existence of a de facto relationship is sometimes the first step in a Family Law litigation. A party must apply for de facto financial orders within two years of the breakdown of the de facto relationship. After that time, a party needs the Court’s permission to apply.

We assist clients in protecting their assets and avoiding future financial disputes arising from relationship breakdown, by advising them in relation to Financial Agreements.

A Financial Agreement can be entered into by a couple contemplating entering into a de facto relationship, or who are in a de facto relationship, or whose former de facto relationship has broken down.

The Financial Agreement can deal with how all or any of the property and financial resources of either or both of the parties at the time of the agreement or acquired at a later time during the relationship is to be distributed and the maintenance of either of the parties during the relationship and in the event of a relationship breakdown.

If you are unsure about the legal status of your relationship and how it might impact your rights, contact our Family Law team.