De Facto Relationships in Family Law

`Determining whether a de facto relationship exists involves examining various factors outlined in the Family Law Act. Courts assess the unique circumstances of each relationship, considering a range of criteria rather than relying on a single aspect.

Key factors include:

• Length of the relationship: Generally, a de facto relationship must have lasted at least two years to be legally recognised. However, if the couple has a child together or one partner has made substantial contributions—financial or otherwise—this time requirement may not apply.
• Living arrangements: While many de facto couples live together, it is not strictly necessary. Partners who maintain separate residences may still qualify if other aspects of their relationship demonstrate a genuine domestic basis.
• Shared finances: Evidence of financial interdependence, such as joint accounts, shared expenses, or financial reliance, is a strong indicator of a de facto relationship.
• Public perception: How the couple is viewed by family, friends, and the community can influence recognition. Being widely regarded as a committed partnership supports de facto status.
• Other factors: Courts may consider emotional and physical intimacy, mutual support, and shared responsibilities, such as raising children or managing household tasks.

Having a child together is particularly influential in establishing a de facto relationship, as it demonstrates a significant level of shared commitment and responsibility.

When a de facto relationship ends, dividing assets can be just as complex as it is for married couples. Under Australian family law, de facto partners are entitled to make property settlement claims, which involve splitting assets like real estate, savings, superannuation, and even debts. The aim is to achieve a fair and equitable division, taking into account the unique circumstances of the relationship.

The process considers several factors, including:

• Contributions: This includes both financial contributions, such as income or property brought into the relationship, and non-financial contributions, like caring for children or maintaining the household.
• Future needs: The court looks at each partner’s future financial requirements, such as earning capacity, age, and health. For example, a partner who left the workforce to care for children might be entitled to a larger share of the assets.
• Duration of the relationship: While the two-year rule often applies for de facto claims, exceptions are made for shorter relationships where significant contributions or children are involved.

Superannuation is also considered an asset in de facto relationships, meaning it can be split between partners just like any other financial asset, it’s just that the superannuation funds are not able to be accessed until the terms of the super fund are met. Additionally, if you’ve entered into a binding financial agreement (similar to a prenuptial agreement), it will play a key role in determining how assets are divided.

Unlike in marriage, proving a de facto relationship existed is often part of the process before asset division can even be addressed. This is where having strong evidence, like shared finances or co-owned property, becomes important.

Understanding how asset division works can help de facto partners navigate separation more confidently and ensure that fair outcomes are achieved.

When it comes to raising children, parental rights in de facto relationships are treated the same as those in marriages. Under Australian family law, the focus is always on what’s best for the child, regardless of whether the parents are married, in a de facto relationship, or separated.

Both parents in a de facto relationship share equal responsibility for their children. This means they have a say in major decisions like education, health care, and religion. If the relationship breaks down, parenting arrangements are determined with the same legal principles that apply to married couples. Courts prioritise arrangements that ensure children have a meaningful relationship with both parents while protecting their wellbeing.

Key considerations for de facto parents include:

• Parenting plans: De facto parents can create a parenting plan to outline how time with the children will be shared and how decisions will be made post-separation. This plan is flexible and can be adjusted as circumstances change.
• Court orders: If parents can’t agree on arrangements, the Family Court may issue parenting orders. These orders are legally binding and outline who the child will live with, how they’ll spend time with each parent, and other care-related matters.
• Child support: Like any separated parents, de facto partners may be required to provide child support. The amount is typically calculated based on income and the time each parent spends caring for the child.

Having a clear understanding of parental rights helps ensure that the child’s interests are protected while also giving both parents the opportunity to maintain a strong bond with their children.

When a de facto relationship ends, it’s important to understand the legal steps involved in resolving issues like property division, spousal maintenance, and parenting arrangements. In many ways, these processes mirror those for married couples, but there are some key differences. Here’s what you need to know:

• Property settlement: De facto couples can apply for a property settlement under the Family Law Act within two years of the relationship ending. The division of assets considers factors like financial and non-financial contributions, as well as each partner’s future needs.
• Parenting arrangements: If children are involved, both parents are expected to prioritise their best interests. Agreements can be made informally, through parenting plans, or with legally binding court orders if disputes arise.
• Spousal maintenance: If one partner cannot support themselves financially post-separation, they may be eligible to claim spousal maintenance. This is assessed based on factors such as income, expenses, and the length of the relationship.
• Proving the relationship: Unlike marriage, de facto partners may need to provide evidence that their relationship existed if it’s disputed. This can include showing proof of cohabitation, shared finances, or a child together.

Navigating the end of a de facto relationship can feel overwhelming, but understanding your rights and options is the first step toward achieving a fair resolution.