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De Facto Relationships

Family Law, Divorce Lawyer, Property Settlement, Child Custody, Defacto Law

In Australia, many people are increasingly choosing to live together on a long term basis in a de facto relationship including same sex couples and couples who are of the opposite sex but who do not want to marry. There is also an increasing number of people marrying for a second and subsequent time.

A de facto relationship is defined as a relationship in which two people live together as a couple on a genuine domestic basis but are not legally married or related to one another. However, sometimes there is a dispute between parties as to whether or not a de facto relationship in fact existed. In these situations, our Lawyers take very detailed instructions from clients about the nature of the relationship in order to advise them whether it is likely the Court will determine that a de facto relationship was in existence.

On 1 March 2009, the Family Law Act was amended to enable parties to an eligible de facto relationship to apply to the Family Court of Australia to have property and maintenance matters determined in much the same way as married couples. As a result of the changes to the law, parties to a de facto relationship may have greater entitlements than they would have had under the previous state law.

When making a property Order, the Court considers financial and non-financial contributions made by each party to the de facto relationship. The Court then has to consider whether it is appropriate to make a further adjustment to take into account circumstances of the parties which are often referred to as ‘future needs’. For example, the Court may make an adjustment to take into account one party’s responsibilities towards any children of the de facto relationship, their earning capacity or any health serious health issues. The Court also takes these types of ‘needs’ factors into account when making an Order about maintenance. In all cases, the Court has to make an Order that is just and equitable.

Many people do not want or intend for their de facto relationship to create the same rights and responsibilities towards their partner that would be applicable if they were married. Often when parties are marrying for a second or subsequent time they require certainty as to the financial outcome if that new marriage fails. These couples can enter into a Financial Agreement which is a legally binding agreement setting out how property is to be divided in the event of a breakdown of the marriage or de facto relationship, whether any maintenance is payable and how financial matters are to be managed during the relationship. They can also provide for responsibility for debts and expenses.

It can often be a delicate process to negotiate a Financial Agreement before or during a de facto relationship or as a second wedding date is set. There are also very strict rules in the legislation about what must be included in a Financial Agreement to make it legally binding. You need to have a Lawyer assist you to prepare and execute a Financial Agreement. Our specialist family Lawyers are able to help you to understand this often complex area of law and to consider the many varied issues that may arise, and to negotiate a Financial Agreement that is in your best interest in a respectful and sensitive way.