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What Are My Legal Rights In A De Facto Relationship?

26th Nov 2021 Blog
In Australia, being in a legitimate de-facto relationship earns you the same rights as a married couple when it comes to matters regarding property settlement, maintenance, financial agreements and superannuation. If you have recently split up from your de facto partner, you may be wondering what the next steps are in terms of your legal rights. Today, we aim to take the confusion out of the matter as we delve into everything you need to know about life after a de-facto relationship, so keep on reading to find out more.

Am I In A De-Facto Relationship?

In order to better assess your situation, you will need to ensure that you are in a de facto relationship in the eyes of the law. Under the Family Law Act, a person is in a de facto relationship with another person if:
  • Both parties are not legally married to each other; 
  • Both parties are not related by family;
  • Parties are living together on a genuine domestic basis.

What Does “Genuine Domestic Basis” Mean?

Each de facto relationship and situation is unique and comes with its own set of individual circumstances, but regardless, the Family Court will consider the following factors: 
  • The duration of the relationship and whether it is of sexual nature;
  • Financial dependence on one another;
  • The existence of joint assets;
  • Care and support of children;
  • The reputation and public aspects of the relationship;
  • The extent of mutual commitment to a shared life.
It is also important to note that the Family Law Act recognises that an individual can be in a de-facto relationship even if they are currently married. Similarly, even though it is uncommon, an individual can also be in more than one de-facto relationship. 

Property Division 

If you are in a genuine de-facto relationship that has ended, you are able to apply for property splitting orders if:
  • The de-facto relationship has lasted for at least 2 years; or
  • You and your partner have children; or
  • Your relationship is registered under a prescribed law of your state; or
  • During property assessment, it is noted that significant contributions were made by either you or your partner and failure of the court to issue an order would result in serious injustice.

Financial Agreements

Under the Family Law Act, both partners can enter into a Financial Agreement To record your financial arrangement. Your agreement can cover:
  • Financial settlement in lieu of a breakup;
  • Maintenance in lieu of a breakup;
  • Other relevant matters 
Do note that in order for your financial agreements to be legally binding, both parties are required to sign it and get independent legal and financial advice about the agreement prior to signing.

Superannuation

Superannuation that is held by each party can be split either via agreement or court order. The splitting of superannuation is a complex process as each superannuation fund comes with its own set of requirements that need to be fulfilled prior to a split. It is always advised that you get in touch with an experienced family lawyer for assistance with the process. 

Property Settlement

If you are in a genuine de-facto relationship, you may apply for  property splitting orders if:
  • The de-facto relationship has lasted for at least 2 years; or
  • You and your partner have children; or
  • Your relationship is registered under a prescribed law of your state; or
  • During property assessment, it is noted that significant contributions were made by either you or your partner and failure of the court to issue an order would result in serious injustice.

Financial Support and Maintenance 

Finally, you are able to apply for ongoing maintenance from your partner if you are unable to support yourself financially. The success of an applicant is heavily reliant on your partner's ability to pay/provide maintenance and the following factors will be taken into consideration:
  • Your age;
  • Your ability to work;
  • Your financial resources - income, property, dividends and other financial resources;
  • A suitable standard of living; and
  • If the relationship has in some way impacted or prevented you from earning an income. 

Time Limitations

De-facto parties need to note that whilst there is no time limit on how soon after separation you can apply for property splitting orders, if an application has not been made before the expiration of two years of the date of separation, de facto parties are precluded from bringing an application, without the leave of the Court.  _________________ If you require assistance or have any questions about your legal rights and entitlements after the breakdown of a de-facto relationship, please contact one of our experienced family lawyers at (03) 9670 7577 or drop us an email at admin@oxfordpartners.com.au to speak to one of our solicitors today.