In Australia, de facto couples are gaining more recognition. With this, comes the increase in legal questions about “what are the rights in a de facto relationship”, and how they can apply to individuals in these situations.
Defining a De Facto Relationship
A de facto partner is a partner that while not married, you live on a “genuine domestic basis”, which can be proved if needed. But what does “genuine domestic basis” mean, and how would one prove it? A de facto couple would generally have to have been living together regularly for at least 2 years, have had a child (or more) together, or if there was a financial paper trail of significant proportions to demonstrate a relationship (medical bills, shared rent, etc.)
* Important note regarding living together
In our modern, mobile world, the court’s interpretation of “living together” has become increasingly flexible. De facto couples simply need to be living together regularly, meaning they don’t necessarily need to be under the same roof every night to be considered de facto. If the couple has ‘sleepovers’ and the couple maintains two residences for professional reasons, the court looks at the nature of the relationship to determine the rights a de facto relationship.
If a de facto couple meets this certain criteria, rights regarding property division, spousal maintenance, and parenting become increasingly similar to those in married relationships.
When deciding on de facto relationship status, and whether the rights in a de facto relationship apply, a court may also consider if the relationship was a sexual relationship, if finances were interdependent, if there was a commitment to a shared life, or how others saw your relationship.
Rights in a De Facto Relationship:
- Property & Finance: Upon time of separation, if the above mentioned criteria has been met, individuals can apply for property settlement in the Family Court.
- Superannuation Splitting Rights: Your superannuation and your partner’s superannuation are added to the “matrimonial pool” of assets to be divided; This is particularly vital in relationships where one partner may have taken time out of the workforce to care for children, resulting in a significantly lower super balance.
- Children & Parenting: Children born in de facto relationships are dealt with in the same regard as all children, meaning in disputes of custody and parenting, their needs are placed first.
- Inheritance: De facto partners may have a claim to any inheritance though the Succussion Act if a partner passes.
Registering a De Facto Relationship
A couple in a de facto relationship can register the relationship at the Registry of Birth Deaths and Marriages. If the relationship was registered, it is significantly easier to manage if the relationship breaks down, as there will be less (or no) evidence needed to be proved to apply rights in a de facto relationship.
The Timeline of Rights in a De Facto Relationship
The dissolved de facto couple has a period of two years from the “split” of the relationship to apply for property settlement or other concerns. Because de facto couples don’t typically have an undisputed divorce date like previously married couples do, it is in the couples best interest to obtain a notarized, or other legally binding, statement supplying the date of separation.
Resolving Disputes
If a relationship ends and the two-year window for property settlement begins to close, seeking mediation is often the first formal step. If an agreement is reached, the rights in a de facto relationship can be formalized through “Consent Orders,” which have the same legal weight as a court judgment. This avoids the emotional and financial drain of a full trial while ensuring both parties’ rights are legally protected.
* In Australia, it is a good idea for de facto couples to draft and enter into binding financial agreements, to help protect their rights in a de facto relationship, and to help with asset division should the need arise.
