In the modern world of love and relationships it’s not ‘official’ until it’s ‘Facebook official’. The change from ‘Single’ to ‘In a relationship’ heralds new found love to friends and family, attracting a flurry of activity on the social media platform.
For many couples, their status remains ‘In a relationship’ unless they move to ‘Engaged’ or back to ‘Single’. There is no option to define such a relationship as ‘De facto’ and indeed many couples wouldn’t think to describe their relationship in such a way. Although the term ‘de facto’ doesn’t resonate with couples, for many, in the eyes of the law, that’s exactly what they are. So what exactly is a de facto relationship and how do you know if you’re in one?
What Is a De facto Relationship?
De facto is a Latin word meaning ‘from the fact’ translated as ‘in fact’ or ‘in reality’. In Australian law, it is used to describe two people in a relationship, living together as a couple on a genuine domestic basis. This includes couples of the opposite or same sex. A relationship is not considered de facto if the couple are married or related.
Much like relationships themselves, defining a de facto relationship isn’t always as simple as moving in together and updating one’s status to ‘In a relationship’. Relationships take many different forms and arrangements are not always straightforward. Living together and public aspects of the relationship are just two factors, in addition to a number of other circumstances, which a court will consider when determining whether a de facto relationship exists. These factors and circumstances, along with the above meaning of de facto relationship, are covered under Section 4AA of the Family Law Act 1975 and include:
- the duration of the relationship
- the nature and extent of their common residence
- whether a sexual relationship exists
- the degree of financial dependence or interdependence, and any arrangements for financial support between them
- the ownership, use and acquisition of property
- their degree of mutual commitment to a shared life
- whether the relationship is or was registered under State or Territory law as a prescribed kind of relationship
- the care and support of children
- the reputation and public aspects of the relationship.
Dissolving a De facto Relationship
While a Facebook status update can announce a new relationship, in the same way, it can reveal fresh heartbreak and the end of a relationship. Like married couples, those in a de facto relationship may have built up common assets in the time they were together and disputes can arise when the relationship breaks down. Separation of assets for de facto relationships was previously covered under State and Territory laws, however, since 1 March 2009 property settlements for de facto couples fall under the federal jurisdiction of the Family Law Courts if the parties separated after that date.
These changes within the Family Law Act (Cth) mean when a de facto couple separates, they are able to obtain a property settlement in the same way a married couple would. Not only is the court able to divide any property the couple own, either separately or jointly with each other, but the court is also able to split superannuation and make orders for spousal maintenance. Under the Family Law Act, any application for a property settlement must be made within two years from the date the de facto relationship broke down..
Can I Have My Dispute Heard in Court?
If the court has found you meet the definition of a de facto relationship, a court may make orders for property settlement if the person applying satisfies at least one of the following:
- the period of the de facto relationship is at least two years, or made up of more than one separate period, but when added together the separate periods total two years
- there is a child of the de facto relationship
- one of the parties made a substantial financial or non-financial contribution (including as a homemaker or parent) and serious injustice would result if the order was not made
- the relationship has been registered in a State or Territory with laws for the registration of relationships.
Do I Need a Family Law Expert?
There is often a misconception the services of a family law lawyer are only necessary for resolving matters in divorce or when children are involved. However the services of a family law expert are just as necessary for those entering into or separating from a de facto relationship.
A family law expert will be able to advise you on all aspects of family law as it relates to your de facto relationship. In the beginning, they can assist with the creation of a financial agreement which is similar to a prenuptial agreement, formalising property and financial arrangements in the event of relationship breakdown. Following a relationship breakdown, a family law expert can offer advice and outline available options, in addition to achieving a resolution and negotiating on your behalf.
Taylor & Scott Lawyers are family law experts with extensive experience and resources to provide strong, effective support to their clients. Family law can be complex, especially when it is necessary to define the circumstances of a relationship and meet certain requirements in order to have a dispute heard in court.
Contact the family law experts at Taylor & Scott Lawyers for an obligation-free consultation regarding your family law matters.
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