Intimate relationships can take many forms these days. It’s very common for people to live together and share nearly everything in life without ever feeling the need to get married… but what is the definition of a de facto relationship, and what are your rights and entitlements should such a relationship breakdown?
In Australia, de facto couples can call on most of the same rights as a married couple in the event of a break up, including:
- LGBTQ couples;
- Married couples who start up a de facto relationship with another person;
- Blended families.
Depending on the circumstances of the relationship, de facto couples often reach similar settlements as married couples. With sound legal advice, people who suffer from the breakdown of a de facto relationships may seek to obtain a:
- suitable property split,
- spousal maintenance arrangement,
- parenting plan,
- regular child support payment; and/or
- superannuation split.
How is ‘de facto’ defined?
People who live together and are in sexual relationship are – believe it or not – not necessarily in a de facto relationship.
A de facto relationship is defined as a domestic relationship of not less than two years, but a court will make a more careful judgement of this based on an assessment of ‘genuine domestic basis’. This assessment will consider, among a number of factors:
- The length of the relationship and whether it is of a sexual nature;
- the financial dependence or independence of each party;
- whether the relationship include joint assets;
- whether there is a child or children from the relationship;
- the extent to which both parties are committed to a shared life.
Couples who do not live together all the time may still be considered to be in a de facto relationship, particularly if their finances are enmeshed. The Family Law Act even recognises the fact that a person can be in more than one de facto relationship at a time, even if they’re also married.
What am I likely to get?
Firstly, be aware there is a time limit of within two years of the break-up to apply for financial orders regarding your former de facto relationship.
Before the court can determine any financial dispute, you must satisfy the court you were in a genuine de facto relationship (as above) and that at least one of the criteria below is met:
- The period for the de facto relationship was at least two years;
- there is a child from the relationship;
- the relationship is or was registered under a prescribed law of a State or Territory;
- that significant contributions were being made by one party and the failure to issue an order would result in a serious injustice.
Do I have a right to some of their superannuation?
Yes, de facto couples may make a claim against the other partners superannuation either by agreement or Court Order. This can be a complicated exercise that involves ticking the boxes of strict policy requirements for each superannuation fund.
What if I can’t afford to be by myself?
If you are experiencing financial hardship as a result of your breakup, your ex may be obliged to help you make ends meet (if only for a temporary period). The success of such an application will depend on the ex-partner’s capacity to pay, as well as the applicant’s age, other income, ability to work, standard of living and whether the former relationship impaired their ability to earn an income.
What will I need to provide?
In order to get an accurate picture of your circumstances, a legal professional will likely ask you to: provide proof of:
- the value of all assets, liabilities and superannuation in your individual and your joint names;
- the value of any property held by businesses, companies or trusts in which you have an interest; and
- what your ex-partner earns, including all benefits and employment entitlements.
If you’re unsure about whether you’re in a de facto relationship, or what you might be entitled to, we recommend you call for free legal advice before going any further.
It is very easy to run up legal fees before you even know where you stand. You will find yourself in a worse position than when you started.
Our firm will give you an indication of your legal position in one phone call, and we won’t charge you a cent.
For over 30 years, Twohill Lawyers have been providing comprehensive legal help to the people of the Gold Coast community. If you require further information or legal assistance, please contact us today for a 15-minute, no obligation advice over the phone on 07 5571 1450 or email firstname.lastname@example.org.