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Family Law
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May 1, 2024

Under Australian law, a de facto relationship is defined in Section 4AA of the Family Law Act 1975.

It describes a relationship between two adults who live together as a couple on a genuine domestic basis but are not legally married to each other or related by family. This definition applies to both opposite-sex and same-sex couples. 

The recognition of de facto relationships is important for legal purposes, particularly when it comes to areas such as property settlement, financial maintenance, and parenting arrangements following the breakdown of the relationship. Let’s explore what a de facto relationship is, relevant examples, how it differs from a marriage union, rights and responsibilities, and how a defence lawyer can support you during a relationship breakdown.

Example Of A De Facto Relationship

Imagine that two people named Sarah and Alex have been living together in a shared apartment in Melbourne for three years. While they are not married, they share a life that closely resembles that of a married couple. 

To put things into perspective, they have joint bank accounts from which they pay for household expenses, share responsibilities for domestic chores, and support each other financially. They attend family gatherings together, and to their friends and family, they are known as a committed couple. And while they have no children at present, they have expressed a desire to start a family in the future. Additionally, they have jointly purchased a car and are saving for a house.

In this scenario, Sarah and Alex’s relationship exhibits many of the characteristics considered under Australian law to determine if a couple is in a de facto relationship. These include the duration of their relationship, their financial interdependence, the degree of their mutual commitment to a shared life, and the public acknowledgement of their relationship.

Jurisdictional Requirements For A Relationship To Be Considered De Factos

To determine if a relationship qualifies as de facto under Australian law, several aspects of the couple’s life together are evaluated, each contributing to the overall assessment:

Cohabitation

Living together is a primary indicator of a de facto relationship. The law examines the living arrangements, duration of cohabitation, and the nature of the shared household and whether the relationship involves a sexual relationship.

Financial Interdependence

The extent to which partners financially support each other, share expenses, own joint property, or have combined finances can indicate a de facto relationship.

Relationship Nature

This includes how the couple presents their relationship to friends, family, and the public. Mutual commitment to a shared life, use of terms like “partner,” and recognition by others as a couple are relevant.

Children

Having or raising children together, including the care and support of children from the relationship or previous relationships, signifies a de facto partnership.

Duration of Relationship

Generally, the longer the relationship, the more likely it is to be considered de facto. While there’s no set minimum, relationships lasting at least two years are commonly scrutinised for de facto status. The depth of the relationship including shared financial arrangements and parental responsibilities are also considered.

Mutual Commitment

Evidence of a couple’s commitment to each other, including the extent of mutual care and support, shared life goals, and the degree of emotional support, underlines the existence of a de facto relationship.

Social and Cultural Recognition

How a couple is viewed within their community, including participation in social activities together, family interactions, and cultural recognition, can also influence their de facto status.

If you are concerned about your own situation and whether these changes might affect you, please contact the team at Nardi Lawyers today for a high-quality, personal approach to your needs.

How is a De Facto Relationship Different From Marriage in the Eyes of the Law?

In the eyes of the law, both de facto relationships and marriages are recognised as legitimate forms of partnership, but there are distinct differences between the two, particularly in how they’re established, dissolved, and how legal rights and obligations are determined.

Establishment

Marriage requires a formal legal process, including a ceremony, witnesses, and registration with the government. It’s a universally recognised legal status. On the other hand, De facto relationships are recognised based on the partners living together in a relationship akin to marriage. There’s no formal registration process required (though couples can choose to register), and recognition is based on criteria like duration of the relationship, cohabitation, and mutual commitment.

Dissolution

Marriage is dissolved through a legal divorce process, which involves filing an application with the court after a minimum period of separation. De facto relationships can be ended without any formal legal process. However, if there are disputes over property or children, legal intervention may be sought, and similar principles to divorce apply.

Legal Rights and Obligations

In marriage, rights and obligations are clearly defined under the law, covering property division, inheritance, spousal maintenance, and next-of-kin rights in healthcare decisions or in the event of death.

De facto partners may have similar rights to married couples, especially regarding property settlement and children’s custody if they separate. However, proving the existence of a de facto relationship might be necessary to access these rights, and there might be variations in how laws apply in different jurisdictions.

International Recognition

Marriage is generally recognised internationally, which can be important for immigration and spousal rights. On the other hand, De facto relationships may not be recognised in all countries, which can affect couples when travelling or moving abroad.

At Nardi Lawyers, we recommend seeking legal advice as early as you can. Our family lawyers service Craigieburn, Broadmeadows, Greensborough, and surrounding areas across Melbourne. offer expert advice, answer questions, and work closely with you until the matter is fully resolved.

The Rights And Responsibilities Of De Facto Partners

De facto partners in Australia have rights and responsibilities similar to those of married couples, covering a range of legal and social aspects. These rights and responsibilities are designed to protect the interests of both partners in a relationship. Here’s a breakdown of these rights and responsibilities:

Property and Financial Settlements

  • De facto partners have the right to seek a property settlement if the relationship ends. This includes the division of property, assets, and debts acquired before or during the relationship.
  • They may also be entitled to part of their partner’s superannuation.
  • The process for dividing assets considers contributions made by each partner and their future needs.

Spousal Maintenance

  • One partner may be required to provide financial support to the other after separation if the latter cannot meet their own reasonable expenses. This is assessed based on needs and the other partner’s ability to pay.

Children’s Issues

  • De facto partners share responsibilities for the care, welfare, and development of their children.
  • They have the right to make applications for parenting orders regarding who the child will live with, spend time with, and communicate with.
  • Child support is another responsibility, with both parents obliged to contribute to their children’s financial support.

Next of Kin

  • In medical emergencies or for making funeral arrangements, de facto partners are recognised as next of kin for their partner.
  • They also have rights to inheritance under intestacy laws if their partner dies without a will, though this can vary by state and territory.

Social Security and Tax

  • De facto partners are recognised for purposes of social security and tax, affecting how benefits are calculated and eligibility for certain concessions.
  • Partners must declare their de facto status, which can influence their entitlements, such as family tax benefits or parental leave pay.

What Happens If Your De-Facto Relationship Breaks?

Angry couple

When a de facto relationship in Australia ends, the parties involved may navigate a process similar to that of divorcing couples, covering property settlement, financial maintenance, and arrangements for any children. Here’s a more detailed look at what this entails under the Family Law Act 1975.


Are you thinking about separating, or experiencing domestic, family or sexual violence? Our team of lawyers can assist you and help you plan for your safety. Contact us today for support in Frankston, Dandenong, Sunshine, South Morang, Mill Park, and surrounding areas across Melbourne.

1. Property Settlement

Division of Property and Assets

The division of property and assets is one of the primary considerations after a de facto relationship ends. This includes everything from real estate and vehicles to savings and investments. The law assesses each partner’s financial and non-financial contributions towards the relationship and their assets. This includes wages, as well as roles as homemakers or caregivers. Future needs, such as caring responsibilities or earning capacity, are also considered.

Superannuation

In the breakup of a de facto relationship, splitting superannuation (retirement savings) involves figuring out its current value and then deciding how to divide it between both people fairly. First, they need to get an official value from the superannuation fund. Then, they can either split the super directly, waiting until retirement to divide it, or one person might take more of another asset (like the house) instead of the super. This process has to follow certain rules, including getting a legal agreement or court order, to make sure everything’s done right and is fair for both sides.

2. Financial Maintenance

Financial maintenance in the context of a de facto relationship breakdown is essentially about ensuring that both parties can maintain a reasonable standard of living post-separation. This kind of support is considered when one partner might not be able to cover their living expenses on their own, and the other partner has the financial capacity to help. 

The court examines various aspects to determine the necessity and extent of maintenance, including each person’s financial needs and the other’s ability to provide support. Critical factors like the age and health of the individuals, their income and earning capacity, and the lifestyle they were accustomed to during the relationship are all taken into account. This process aims to achieve a fair outcome that reflects the contributions made by each partner and the economic interdependence developed during their time together.

3. Children’s Arrangements

Parenting Orders

Issues regarding children, including who they will live with, the time they spend with each parent, and other welfare aspects, are addressed through parenting orders. These orders can cover everything from day-to-day care to longer-term issues like education and health care.

Child Support

Child support is a separate consideration, calculated according to a formula that factors in both parents’ incomes, the number of children, and the time children spend with each parent. This financial support is essential for covering the costs of raising children post-separation.

4. Legal Steps

Negotiation and Mediation

Many couples start by trying to resolve these issues through direct negotiation or mediation, often with the help of legal counsel. This can be a more cost-effective and less adversarial approach than court proceedings.

Court Application

If an agreement can’t be reached, applying to the Family Court or Federal Circuit Court for orders is the next step. This process may require proving the existence of the de facto relationship, which can be straightforward or complex, depending on the situation. Get legal advice.

Time Limits

In Australia, when a de facto relationship ends, partners have a two-year window from the date of separation to apply for a property settlement or spousal maintenance. This time limit is critical because, after it expires, former partners may lose the legal right to seek these financial adjustments through the courts. The rule is designed to encourage timely resolution and provide certainty for both parties moving forward. It applies to issues like dividing assets, including superannuation and determining if one partner should support the other financially after the relationship ends.

However, the law also recognises that circumstances can vary widely, and sometimes, there are compelling reasons for missing this deadline. In such instances, individuals can apply to the court for an extension of the time limit. The court will consider factors like hardship to the parties involved or the children of the relationship, and whether there’s a good reason for the delay. Getting an extension isn’t guaranteed, making it crucial to be aware of and act within the legal timeframe whenever possible.

Hire an Experienced Family Lawyer in Melbourne Today

De facto relationships can be complex, with various legal nuances that differ significantly from those of marriage. Understanding your rights and responsibilities in such a partnership is crucial, especially when it comes to property settlements, intervention orders, financial maintenance, children’s custody, or even the dissolution process itself. This is where Nardi Lawyers steps in to provide the clarity and support you need.
So whether you’re entering into a partnership, considering dissolution, or facing disputes, we’re committed to providing the support and guidance you need. Contact us today to ensure your rights are protected and to make informed decisions about your future. For more insights into de facto relationships and how we’ve proven track record in it, feel free to check out our case studies and blog.

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