De Facto Relationships & Separation

When two people are in a de facto relationship, they are still protected by the Family Law Act 1975, even if they are not legally married. 

What is a de facto relationship?

A de facto relationship is between heterosexual (different sex) couples or same sex couples. Under a court of law, a person is in a de facto relationship with another person if they:

• Are not legally married to each other
• Are not related
• Have lived together as a couple on a genuine domestic basis

Sometimes it is unclear whether or not a de facto relationship exists. In these situations the courts will consider the following information to make their judgement:

• If you were in a sexual relationship with the other person
• If you depended financially on each other
• How property was acquired and when
• If you were committed to sharing your life together
• If children were involved and how they were supported
• How external people viewed your relationship 

Where to register for a de facto relationship

Whilst it is not essential to register a de facto relationship, most states and territories in Australia do allow for the registration of a de facto relationship. In Victoria, this is done under the Relationships Act 2008 (Vic). Applications for registrations can be through Victorian Births, Deaths and Marriages.  Registration of your de facto relationship provides you with a certificate, which can be used as proof that a de facto relationship exists.

When does a de facto relationship end?

There is no formal process to end a de facto relationship (ie you do not need a Divorce) and many de facto relationships end amicably. All that is required is that one party to the relationship wishes to separate and communicates this to the other.

De facto relationships and Separation

Most de facto relationships end amicably and usually involve one or more of the items below:

1. Parenting Arrangements and Child Contact 
2. Property and Financial Settlement 
3. Maintenance Requests 

Separation between de facto couples can be resolved in three ways:

• Agreement between the parties without Court involvement;
• An agreement formalised by the Court, through an application for Consent Orders; or
• An application to the Court for parenting arrangements, property and financial settlements as well as maintenance requests. 

Parenting Arrangements and Child Contact

If you and your ex-partner have children under the age of 18 and cannot come to an amicable arrangement, there are steps that can be taken to deal with issues relating to children. 

The process deals with issues relating to children from de facto relationships in the same way as with children of married couples. Please visit Parenting Arrangements for more information.

Property and Financial Settlement 

In order for a party to a de facto relationship to bring a claim for property settlement, the de facto relationship will generally need to have lasted for two years without separation. 

There are some important exceptions to this however such as:

• If there is a child of the relationship 
• Where one party has made significant financial contributions to the relationship.

It is best to sort out the Property and Financial Settlement amicably and we can assist in facilitating an agreement with the parties without court involvement. If you have signed a binding financial agreement prior to or during the relationship, you can resolve property and financial matters according to the agreement.

If you have registered your de facto relationship through Births, Deaths and Marriages, this may create rights for property division, even though you may not have lived together for two years. Various assets may come into consideration. This may include property, motor vehicles, bank accounts, shares, superannuation and redundancy payments

Maintenance Requests

In some circumstances, there may be an obligation to provide maintenance to your former partner. This may happen when your former partner is unable to adequately support themselves so that their reasonable needs are met and you have the financial capacity to do so.

In circumstances involving maintenance, it is best to seek legal advice.

Time Limits

You must apply for Court orders within two years of the breakdown of your relationship, otherwise you need the Court’s permission to apply for such orders.

Death of a de facto partner

You have the same rights as a married person if your de facto partner passes away. You may have the right to:

• Have a share of an estate where no Will exists (that is, your partner has died ‘intestate’)
• Contest a Will if you felt you were not adequately provided for 
• Receive compensation entitlements if your partner dies during the course of employment; and
• Claim social security entitlements

Mackinnon Jacobs Lawyers provides experience and guidance in relation to all matters relating to de facto relationships. Please contact us here for more information.