13. De-Facto Relationships

Q. What rights do I have when my de-facto relationship breaks down?

A. De-facto relationships are regulated under the Property Relationships Act 1984. In the event of a breakdown in a de-facto relationship, separating couples are able to enter into legally binding arrangements in relation to property matters and the care of any children.

Parenting matters are dealt with under the Family Law Act and the same provisions apply in relation to children of de-facto couples as apply in relation to children of married spouses (see Part 4 through to Part 7 of these FAQs).

Q. What options are there for sorting out our property?

A. If you agree with your de facto partner on issues of property you may wish to enter into a Termination Agreement. A Termination Agreement is similar to a Binding Financial Agreement (see Part 11 of these FAQs). It can contain all of the property arrangements that you and your de facto partner have agreed to including matters about the division of property and superannuation. Entering into a Termination Agreement does not involve the Court at any stage. There are various requirements that must be met by both parties when entering into a Termination Agreement, including the requirement that each party must receive independent legal advice prior to entering into the Agreement.

Q. What if we don’t agree?

A. If you and your de facto partner cannot agree on how to deal with issues of property upon separation, then it may be necessary for you to make an Application to the Supreme Court of NSW. The Supreme Court has the power to make Orders in relation to all types of property including real property (such as your house), superannuation, companies/trusts and the like. Under the Property (Relationships) Act the Court decides what Orders should be made by taking into account the contributions made by the parties to the acquisition, conservation and improvement of property, both of a financial and non-financial nature, in addition to any contributions made by either of the parties in their capacity as homemaker and/or parent. Importantly, the Court does not take into account the future needs of the parties, such as their responsibilities for the care of any children; their ages; states of health and earning capacities.

Q. Can de facto couples enter into Financial Agreements?

A. Yes. De facto couples can enter into legally binding agreements called Domestic Relationship Agreements. These Agreements can be entered into between de facto couples to provide how their assets will be divided in the event of their separation. Each partner must receive independent legal advice prior to entering into such an Agreement.