Relationships can be hard. And when it comes to understanding your rights, especially if you're in a de facto relationship – well, they can be even harder.
In Australia, de facto relationships are recognised by law, with the Family Law Act providing partners with certain rights and responsibilities similar to those of married couples. Whether you're new to the concept or need a refresher, this guide will help you understand what a de facto relationship is, what rights you have, and why it's important to be aware of them.
We'll cover everything you need to know, with our goal being to provide you with a complete guide on de facto relationship property rights in Australia, which may help you to make informed decisions about your relationship and future.
What is a genuine domestic basis?
A de facto relationship isn't just about living together—it's about sharing a life. To be recognised under Australian family law, a de facto relationship must have a "genuine domestic basis." This means a relationship that mirrors a marriage, even if the couple doesn't live together full-time.
Several factors can indicate a genuine domestic basis:
- Length of the relationship: The longer you've been together, the more serious the relationship is likely considered.
- Living arrangements: Living together can show commitment, but it's not required. Partners might live apart due to work or personal choices yet still share a life.
- Financial interdependence: Linked finances, such as joint accounts or shared expenses, show a commitment to a shared future.
- Social recognition: If friends, family, and the community recognise you as a couple, this supports the existence of a de facto relationship.
- Shared responsibilities: Raising children, caring for each other, or making future plans together often indicate a genuine domestic basis.
- Property ownership or use: Jointly owning or using property can show a shared commitment, even if the partners live separately.
- Mutual commitment: Emotional and practical commitments—like planning for the future and supporting each other—suggest a relationship similar to a marriage.
These factors are guidelines, not strict rules. Courts look at the overall picture rather than checking off a list. If your relationship meets these criteria, you may have rights similar to those of a married couple, such as property settlements and financial support.
Reasons to register your relationship
In some Australian states and territories, you can register your de facto relationship to formally recognise your partnership, much like a marriage certificate. Here's why you might consider it:
- Legal recognition: Registering provides clear legal status, which can be helpful in legal matters, like property disputes or financial support claims.
- Simplifies property and finances: If the relationship ends, a registered status can make it easier to divide assets and finances, reducing disputes.
- Access to benefits: Registration can help you access benefits, such as superannuation entitlements, inheritance rights, and social security, without needing additional proof of your relationship.
While not mandatory, registering your de facto relationship can provide legal clarity and protection for both partners.
When can you register your de facto relationship?
You can register a de facto relationship in some Australian states and territories, including New South Wales, Victoria, Queensland, Tasmania, the ACT, and South Australia. To do this, you and your partner must:
- Be over 18 years old
- Not be married or in another registered relationship
- Meet residency requirements for the state or territory
- Be in a genuine domestic relationship
The registration process typically involves filling out an application, providing ID, and sometimes a statutory declaration, along with a fee. Check your local requirements for specific details.
Registering your relationship isn't required but can provide legal clarity and protection. It's one option among others to prove a de facto relationship, depending on your needs.
De facto rights: property settlement
When a de facto relationship breaks down and ends, dividing property and assets is a common concern. In Australia, de facto couples have similar rights to married couples under the Family Law Act and can make a claim for a property settlement agreement. Property settlement considers both financial and non-financial contributions made by each partner, such as income, savings, homemaking, or raising children.
The court aims for a fair and equitable distribution, which doesn't always mean a 50/50 split. Factors like future needs, earning capacity, and care responsibilities are considered. Assets included in a property settlement can range from real estate and personal property to financial assets and superannuation. You can read more about this in our property and assets FAQs.
If you're pursuing a de facto property settlement, remember there's a two-year time limit from when the relationship ends to apply to the court. You can learn more in our complete guide on family law property settlement in Australia and also seek early legal advice to help protect your interests and guide you through the process. You can discuss your situation with the best property settlement family lawyers at Unified Lawyers.
De facto rights: child support or spousal support
When a de facto couple ends their relationship it can raise important questions about financial support, especially when it comes to children or a partner who needs help getting back on their feet.
If you have children from your de facto relationship, you are still responsible for their financial wellbeing, just as if you were married. This means that each de facto partner has an obligation to provide for their children's needs, regardless of who the child lives with. The amount of child support is generally determined based on both parents' incomes, the cost of raising the children, and the amount of time each parent spends with the children.
Spousal support, or spousal maintenance, might also come into play after a de facto relationship ends. This is financial support paid by one partner to the other if they cannot adequately support themselves after the separation.
To qualify for spousal support, the person seeking it must prove that they need financial help, and the other party has the capacity to pay. The court considers various factors, such as:
- Age and health of both partners
- Income, property, and financial resources
- Ability to work and earning capacity
- The standard of living during the relationship
- If one partner is caring for a child under 18
If you need to seek child support or spousal support, it's best to start by seeking legal advice. A family lawyer can help you understand your rights and the process for applying.
Parenting orders
When a de facto relationship ends and children are involved, planning for their care becomes a top priority.
Parenting orders are legal decisions made by the court that outline how children will be cared for after separation. These orders can cover various aspects, including where the children will live, how much time they will spend with each parent, who will make important decisions about their lives, and how they will communicate with the non-resident parent.
There are two main types of parenting orders: consent orders and court-imposed orders. Consent orders are made when both parents agree on the arrangements, and the court approves these agreements to make them legally binding. If parents cannot reach an agreement, the court steps in and decides based on the best interests of the child, prioritising their safety, welfare, and the need to maintain a meaningful relationship with both parents, where possible.
If you and your ex-partner cannot agree on parenting arrangements, you might need to apply for a parenting order through the Federal Circuit and Family Court of Australia. This process often begins with mediation to try and resolve differences outside of court. Seeking legal advice can help you navigate this process and ensure your children's best interests are protected.
Binding financial agreement
A Binding financial agreement (BFA) is a legal document that outlines how a de facto couple's financial and property issues will be handled if the relationship breaks down. Similar to a prenuptial agreement for married couples, a BFA can provide clarity and security, helping to avoid disputes over assets and finances.
A BFA can cover various financial matters, including property owned before the relationship, assets acquired during the relationship, financial contributions, and how debts will be managed. It can also address spousal maintenance, which is financial support paid by one partner to the other after separation.
One of the key benefits of a BFA is that it allows de facto partners to make their own agreement about how their finances will be divided, rather than leaving it up to the court. This can save time, money, and stress, providing a clear plan for what happens if the relationship ends. However, for a BFA to be legally binding, both parties must have received independent legal advice before signing, ensuring that each partner understands their rights and the agreement's implications.
If you're considering a binding financial agreement, it's essential to seek specialist advice from a professional family lawyer. They can help you draft a fair agreement that protects your interests and complies with Australian law, giving you peace of mind about your financial future.
How can we help?
Navigating the complexities of de facto relationships and the legal issues that come with them can be overwhelming. That's where we come in. At Unified Lawyers, our team of experienced family lawyers Sydney is here to guide you through every step of the process, whether you're looking to register your relationship, seeking a property settlement, or needing help with child support or spousal maintenance.
We understand that every situation is unique, and we offer personalised advice tailored to your specific needs. Our goal is to help you reach the best possible outcome, whether through negotiation, mediation, or representing you in court. We're committed to providing clear, straightforward guidance to help you understand your rights and make informed decisions.
If you're dealing with a de facto relationship issue and need legal support, don't hesitate to reach out. We offer consultations to discuss your situation and help you understand your options. Let us help you navigate these challenges with confidence and ease.
Conclusion
Understanding your rights and responsibilities in a de facto relationship is crucial, especially if the relationship ends. Whether it's about property settlements, child support, spousal maintenance, or registering your relationship, being informed can make a significant difference in how smoothly these matters are handled.
De facto relationships are legally recognised in Australia, giving you similar rights to those in a marriage. However, each situation is unique, and it's essential to seek legal advice to ensure your interests are protected and that any agreements you make are fair and legally binding.
If you find yourself facing any of these issues, or if you simply want to know more about your rights in a de facto relationship, our team at Unified Lawyers is here to help. We're committed to providing you with the support and guidance you need to navigate this complex area of family law. Reach out today to discuss your situation and find out how we can assist you.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.