When do de facto relationship entitlements arise?
If your relationship has ended, you may have de facto relationship entitlements to your partner’s property, as well as the property of the relationship. They are sometimes known as de facto break-up entitlements.
You can make a property claim under the Australian Family Law Act when:
- The de facto relationship is registered
- You and your former partner lived together on a genuine domestic basis for at least two years before separating
- You and your former partner share a child or children
- You and your former partner have reached a property settlement agreement and have asked the Family Court to make consent orders based on the agreement
Property can include:
- Bank accounts
- Real estate
- Shares and other investments
- Business assets
- Personal property, including cars
For more information about what is property in a de facto relationship, see our page on Marriage Property and Assets.
What does genuine domestic basis mean?
If you wish to make a claim on the property of the relationship, or the property your partner has held since before the de facto relationship started, you must be able to establish the relationship was conducted on a genuine domestic basis.
There isn’t a single definition for this term. To work out what is genuine domestic, a court would look at a range of features in the relationship, for example child-caring responsibilities and division of financial obligations. For more information, see our De facto Relationships page.
What is a short-term de facto relationship?
A short-term de facto relationship is one in which the couple has lived together for less than two years, they don’t share children, and the relationship isn’t registered.
The period that a couple has lived together is one of the most important considerations when working out de facto relationship entitlements. The Family Court will place as much importance on duration as it does on whether the couple has lived together on a genuine domestic basis.
If you don’t share children with your former partner and the relationship isn’t registered, the Family Court has no power to make property orders or to hear your property claim if the relationship is short-term.
However, the Court may decide to hear a claim if you or your partner made significant financial or non-financial contributions to the relationship, and there would be a grave injustice if either of you were prevented from making a property claim.
Issues surrounding short-term de facto relationships are often complicated, especially if there’s a dispute about contributions. You’ll need expert legal advice as soon as possible if you’re in this position. Contact us today to find out more about your de facto relationship entitlements.
If my de facto relationship breaks down, what are my entitlements?
Your de facto relationship property entitlements depend on your circumstances. It’s unlikely your entitlements will be the same as anyone else’s, simply because every situation is unique.
There are, however, some basic rules and guidelines under Australian family law for working out the property entitlements for former de facto partners.
The most important consideration is the time limit. You have two years from the date of separation to make a property claim in the Family Court. Usually, a claim is only made after attempts to reach an agreement have failed, so this two-year time limit is typically used by the parties to try and negotiate an agreement.
If you make a claim, the Family Court will work out how to divide the property (otherwise known as property entitlements) by:
- Identifying and valuing all the property (including any property held by either of you before you started living together, and any property acquired after separation)
- Assessing the financial and non-financial contributions of both you and your former partner
- Considering any future needs either of you may have
- Deciding whether the proposed division is fair to both parties
For more information about this process, see our information on Divorce and Property Settlement.
Does having children together make any difference to my de facto break-up entitlements?
If you have children with your former partner, you don’t need to meet the minimum two year time requirement for having lived together. Once there’s a child, the time limit doesn’t apply.
Having children may affect your break up entitlements in many ways. For example:
- You may be entitled to child support for dependent children, or you may be required to pay child support. See our Child Support page for further information
- If you or your partner has given up work, or reduced work hours, to care for children, one of you may need spousal maintenance for additional financial support. For more information, see our Spousal Maintenance page.
- If you made a significant financial or non-financial contribution to the relationship (for example, giving up work to care for children), this might be recognised, by a property division in your favour
If you have questions about how children may affect your de facto entitlements, we can help. Contact us for more information about your de facto entitlements.
What is the best way to protect my assets in a de facto relationship?
If you wish to protect your assets, one of the first steps is to have a detailed understanding of what you own before you start living together. It’s handy to keep a list, as well as any valuations.
As your de facto relationship approaches the two-year mark, you need to be aware your partner will have rights to your property, including any property owned by you before the relationship commenced. If you’re concerned about the stability of your relationship, you should seek our legal advice.
If you have a child together or if you register the relationship, you need to be aware your de facto partner already has property rights.
You may choose to protect your pre-relationship assets with a property settlement agreement. This type of agreement is similar to a pre-nuptial agreement, which is entered into before marriage. Property settlement agreements can also be entered into during the de facto relationship.
These agreements can become court orders if the parties consent. The advantage of having court orders is if something goes wrong, the Family Court can enforce them. For more information about property settlement agreements, see our page on Property Consent Orders.
How can a family lawyer help me?
We’re experts in all aspects of de facto relationship entitlements. We’ll help you sort out your property and assets and to decide whether to make a claim. We’ll give you advice tailored for your specific needs, focussed on minimising stress.