De facto relationships and family law
If your de facto relationship has ended, you may have many of the same family law rights and entitlements as a married couple under the Family Law Act 1975 (Cth) (Act). Arnold Hills will help you understand your rights, explain your options and guide you through the steps available to resolve your de facto relationship matter.
What is a de facto relationship?
A de facto relationship involves two people who have a relationship as a couple living together on a genuine domestic basis without being legally married to each other. This applies to same-sex and opposite-sex couples. A de facto relationship can also exist if one person is legally married to someone else.
Section 4AA of the Act provides that a person is in a de facto relationship with another person if they are not legally married to each other, are not related by family and, having regard to all the circumstances of their relationship, have a relationship as a couple living together on a “genuine domestic basis”.
In deciding whether a de facto relationship exists, the court may consider the following:
- the duration of the relationship;
- the nature and extent of the parties’ common residence;
- whether a sexual relationship existed;
- the degree of financial dependence or interdependence between the parties and any arrangements for financial support between them;
- the ownership, use and acquisition of property;
- the degree of mutual commitment to a shared life;
- whether the relationship was registered under State or Territory law;
- the care and support of children; and
- the reputation and public aspects of the relationship.
No single factor is decisive and the court may give each circumstance the weight it considers appropriate when determining whether a de facto relationship existed.
In some matters, one person may say that there was a de facto relationship, while the other may deny it. These disputes can be important because the existence of a qualifying de facto relationship may determine whether a property settlement or de facto maintenance claim can proceed. Evidence about the parties’ living arrangements, finances, property, mutual commitment and how the relationship was presented to others may therefore become significant.
Arnold Hills will provide you with tailored legal advice about the strengths and risks of your position and the evidence that may be relevant.
De facto relationships and property settlement
Under the Act, eligible parties to a de facto relationship that has broken down may apply to the court for a property settlement or de facto partner maintenance. The general principles that apply to determining property matters are substantially the same as those that apply to married couples, although additional eligibility requirements apply to de facto relationships.
Before the court can make certain property or maintenance orders, the parties must satisfy certain threshold requirements. In addition to establishing that a de facto relationship existed and has broken down, at least one of the following must apply:
- the de facto relationship lasted for at least two years; or
- there is a child of the de facto relationship; or
- the relationship is or was registered under a State or Territory law; or
- one party made substantial contributions recognised under the Act and a failure to make an order would result in serious injustice to that party.
There are also geographical requirements that need to be satisfied before the court can determine a de facto property or maintenance matter. This can be particularly relevant where the parties have lived in different States, Territories or overseas.
If you’ve recently separated from a de facto partner, Arnold Hills can advise you on your rights and entitlements, explain your options and guide you through the next steps to protect your financial interests.
Time limits for de facto property claims
Strict time limits apply to de facto property and maintenance applications.
An application for a de facto property settlement should generally be made within two years of the end of the de facto relationship. If the time limit has expired, you may need the court’s permission to commence proceedings out of time, unless both parties consent to the application. The court will not automatically grant permission to commence proceedings out of time and specific requirements must be satisfied. It is therefore important to obtain legal advice as early as possible.
Arnold Hills will assess your matter and advise you on your rights, obligations, applicable time limits and the steps you can take to resolve your property and financial matters following the end of your de facto relationship.
De facto relationships and parenting arrangements after separation
Following the end of a de facto relationship, parents may need to consider arrangements for their children, including where the children live, the time they spend with each parent, schooling, health, travel, communication, changeover arrangements and other matters.
The same family law principles apply to parenting matters whether the parents were married or in a de facto relationship. When making parenting orders, the court must regard the best interests of the child as the paramount consideration. Parenting arrangements may be agreed to informally, recorded in a parenting plan, or formalised through parenting orders made by the Federal Circuit and Family Court of Australia, either by consent or following court proceedings.
Arnold Hills will advise you on the options available and the steps you can take to resolve parenting arrangements following the breakdown of your de facto relationship. For more information see our parenting and children’s webpage.
Speak with Arnold Hills, de facto relationship lawyers in the Hills District and Sydney
If you are separating from a de facto partner, are responding to a claim from a former partner, or are unsure whether your relationship meets the legal definition of a de facto relationship, Arnold Hills can provide clear and tailored legal advice about your circumstances.
We can assist you with negotiating with your former partner or their lawyer, preparing and reviewing consent orders, and preparing or responding to court applications. We can also advise you on property settlement, superannuation and other financial matters arising from the end of your de facto relationship, including de facto partner maintenance, as well as parenting arrangements after separation. Where relevant, we can advise you on applicable time limits and any steps that may need to be taken and represent you if a dispute arises about whether a de facto relationship existed.
Arnold Hills assists clients throughout the Hills District, including Castle Hill, Norwest and Rouse Hill, as well as clients across Sydney.
Contact us today to arrange a confidential consultation about your de facto relationship, property, parenting or financial matter.
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