Key Takeaways
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- To formally end a de facto relationship there are no legal processes required, however, each party does have a right to make a claim for a property settlement.
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- De facto partners can contest the will of their partner under certain circumstances, such as if they believe they were not properly provided for in the will.
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- If a family law matter is resolved in the Court, it will be treated in the same way as a marriage, however, the relationship will need to be proven.
A de facto relationship is a committed and genuine relationship between two adults who are not married.
This type of relationship is very common in Australia and is also legally recognised, which means that certain rights and responsibilities are afforded to each person in the relationship.
These rights and responsibilities raise a lot of questions for people in de facto relationships, which is why we’ve put together our two-part guide to de facto relationships – you can read part one here.
In this second part, we will be focusing on questions relating to how your finances and property can be impacted by de facto relationships, as well as questions that may arise when a de facto relationship ends and how legal matters may be resolved.
De Facto Relationship Guide Part One Recap
Before we dive into part two, we’ll remind you that in part one we covered questions about de facto relationships that are a bit more general in nature, including the criteria that needs to be met to be considered to be in a de facto relationship. We also answered common questions about children and parenting matters for these relationships.
You can access those topics using the links below:
Questions About Finances, Estates and De Facto Relationships
Can a de facto partner be held responsible for the debts of their partner?
Generally, a de facto partner is not automatically responsible for debts incurred solely by their partner. Some couples, whether de facto or married, choose to pay off debts together, regardless of whose name the debt is in.
There may be certain circumstances where a de facto partner could become liable for their partners debts such as if the couple takes out a joint debt together or if they are the guarantor for their partner’s debt.
It is important to note, that when a de facto relationship ends and a claim for a property settlement is made, the debts and liabilities of both parties, including separate and joint debts and liabilities, will be considered as part of the overall asset pool.
What happens to debts and liabilities when a de facto relationship ends?
When a relationship (including a marriage) ends, your entitlements and rights are extremely important and it means that you can make claims on property, including assets, savings and superannuation (which we will discuss below).
However, as we touched on above, if you have debts and liabilities and a claim for a property settlement is made, these can be included in the property asset pool to assess the overall value of the assets.
You may be able to come to an agreement about your property when your relationship ends, and this might include that you continue to manage any joint debts together or separately, however, if you are unable to come to an agreement, then this may result going through the Federal Circuit and Family Court to resolve your property settlement dispute and your debts and liabilities will likely be considered when assessing your property pool.
Do de facto partners have automatic rights to each other’s superannuation?
It is possible for a spouse or partner to nominate their de facto partner as a beneficiary of any death benefits associated with their super fund.
Upon the breakdown of the de facto relationship, if a property settlement is claimed, the superannuation of each parties is likely to be included in the asset pool as it is considered property. Unless the couple comes to another agreement, it is likely to be considered an asset that can be split in the event of a separation.
It’s important to note that given the unique features and arrangements of relationships, you should seek legal advice before you make a property settlement agreement or if you have any questions about how your super may be affected by a break up.
You can also learn more about separation and superannuation here.
Can a de facto partner inherit from their deceased partner’s estate?
In Australia, a de facto partner can potentially inherit from their deceased partner’s estate, but it is not an automatic entitlement. The ability to inherit from a deceased partner’s estate depends on various factors, including the presence of a valid will, the nature of the de facto relationship, and applicable laws in the jurisdiction.
If the deceased partner had a valid will that includes the partner as a beneficiary, then the de facto partner can inherit according to the terms of the will, similar to any other named beneficiary.
However, if the deceased partner did not leave a valid will or if the will does not adequately provide for the de facto partner, the de facto partner may still have the option to make a claim against the estate. This is done through what is known as a family provision application, where the de facto partner can seek a share or a greater provision from the estate.
What happens if a de facto partner dies without a will?
When someone dies without leaving a will, known as intestate, someone is appointed who will distribute the deceased’s estate. The de facto partner is likely to inherit their partner’s estate as long as the relationship is proven valid and if the deceased had no children. If they had children, the de facto partner will likely inherit a portion of the estate, as will the children.
Can a de facto partner contest a will if they were not included as a beneficiary?
It is possible for a de facto partner to contest a will in Australia if they were not included as a beneficiary. The law provides provisions for eligible persons, including de facto partners, to contest a will if they believe they have not been adequately provided for in the deceased person’s will.
Valid grounds for contesting the will must be established. This can involve showing that the de facto partner has not been adequately provided for in the will and that there are factors such as financial dependency or a moral obligation for the deceased to have made provisions for them.
Contesting a will can be a complex legal process, and the outcome will depend on the unique circumstances of the case. Seeking professional guidance will help the de facto partner navigate the process and assess the strength of their claim based on the nature of their de facto relationship and the applicable laws.
Questions About Break Ups and De Facto Relationships
How do you formally end a de facto relationship?
Unlike a marriage, there is no formal process to legally end a de facto relationship. Rather the de facto relationship is usually ended upon a mutual agreement made by the de facto partners.
When a de facto relationship ends, the partners have the flexibility to negotiate and make arrangements regarding the division of property and assets. If they have children, then they must make parenting arrangements. This can be done through informal discussions or with the assistance of mediation or dispute resolution services to facilitate a fair and amicable resolution.
Even if you can make an agreement easily, it’s still recommended to seek legal advice. You can ensure you’re covering all of your bases and there are even opportunities to make your arrangements formal, through binding financial agreements and consent orders.
How is property divided when a de facto relationship ends?
When a de facto relationship ends the former partners have the opportunity to make a claim on property and assets of the relationship.
Similar to when a marriage ends, the parties to a de facto relationship can come to an agreement on how they will manage their property and assets privately and informally, or if they are unable to come to an agreement, they can apply for a property settlement through the court.
Like when a marriage ends, a variety of factors are considered when determining how property and assets will be split, but essentially the court will take the following factors into consideration:
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- The total value of the assets;
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- The contributions made by each party; and
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- The future needs of each party.
If you do find yourself in a property settlement dispute, seeking legal advice can help to make the process a lot easier. Property settlement matters can be complex and difficult to manage with it being easy to overlook various factors that could impact you now or in the future. Learn more about property settlements here.
Are there any differences in legal rights and obligations between de facto relationships and registered relationships?
Your de facto relationship will still be afforded the same rights and recognition, regardless of whether you choose to register your relationship or not.
Formalisation of a relationship through registration may be recommended in certain circumstances, such as where a couple is involved with visa or immigration processes, or perhaps in drafting a financial agreement between partners, however, it is not a requirement for your relationship to be valid.
How does the Federal Circuit and Family Court handle disputes and legal proceedings related to de facto relationships?
The Federal Circuit and Family Court of Australia handles various family law matters and legal proceedings that may affect married or de facto couples. The court treats these matters the same, regardless of whether you were married or a de facto couple, however, the court will need to determine that the de facto relationship is/was genuine before proceeding with matter.
Each of the various matters that can be handled by the Court have a number of different factors that are taken into consideration when the Court is determining an outcome, and they take the unique circumstances of your situation into consideration too.
Is there a time limit for making a claim on the property after the end of a de facto relationship?
Yes, there is a time limit for making a claim on the property after a de facto relationship ends. A claim for a de facto property settlement must be made within two years of the date of separation.
It may be possible to be granted permission by the court if you have not made a claim within this time limit but wish to, however, permission is not always granted.
Are de facto partners entitled to spousal maintenance (financial support) after separation?
De facto partners may be entitled to spousal maintenance, also known as financial support, from their former de facto partner upon a separation, however, it’s not an automatic entitlement.
An application for spousal maintenance can be made, similar to when married couples separate, and is usually granted when the spouse is unable to adequately support themselves financially following the end of the relationship.
You can discuss your eligibility for spousal maintenance with a family lawyer or you can read more about spousal maintenance in Australia here.
Questions About Legal Matters and De Facto Relationships
What steps should individuals take to protect their rights and assets in a de facto relationship?
An option de facto couples have to protect their assets and property in the event of their relationship ending is by entering into a binding financial agreement. These agreements can be made before a relationship, during or even after the relationship has ended and allows the couple to outline how their assets, property, financial matters and liabilities will be handled if the relationship does end.
Before a person can enter into one of these agreements, they must seek independent legal advice. Learn more about binding financial agreements here.
Do you need to work with a lawyer when going through a family law matter in de facto relationship?
No, you don’t have to have a lawyer when it comes to dealing with family law matters, regardless of whether you were married or in a de facto relationship.
While you don’t have to, it is often advised to seek legal advice because family law is complex and emotionally stressful by nature.
A family lawyer can provide you with expertise, guidance and representation and provide you with support. They can also just make a lot of processes easier, from answering your questions to making sure you’ve got your paperwork in order. And though you do need to pay for their services, their efficiency and outcomes achieved often result in you saving time and money.
Do you need to know your rights and responsibilities in your de facto relationship?
If your de facto relationship has recently ended, you’re considering separation, or you’re just looking to learn more about your options, a family lawyer can help you.
We're here to help
At Unified Lawyers, we’re experienced in helping de facto couples resolve various disputes and understand their options and our offices are always open to help you.
We have offices throughout Sydney, as well as in Brisbane and Melbourne, but we can also help people no matter where they are in Australia. You can get in touch with us by calling us on 1300 667 461 or by booking a consultation using the button below.
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