Getting married used to be a given for any couple in a long-term relationship. But, today, many couples are opting for de facto relationships too. The word "de facto" is a Latin term meaning "of fact" and while used to refer to other things, it mostly describes a relationship. Specifically, it describes unmarried couples, in terms of legal status.
Couples who are in a de facto relationship are like any married couple: they share finances, live together, have children. The only difference is a marriage certificate, which makes the union legally recognised. While the absence of a marriage certificate doesn't make a huge difference in the daily life of a couple, it does become complicated when they choose to separate.
What is a de facto relationship?
Under Australian family law, a de facto is a relationship is considered when two adults are together in a marriage-like relationship but are not married to each other. A person can be in a de facto relationship with a partner of the same sex as well.
How do I know if I'm in a de facto relationship?
It might be a little tricky to determine exactly when you're in a de facto relationship. These following factors are common indicators of a de facto relationship:
- The length of the relationship, including previous records of separation
- The nature of the couple's common residence
- Their financial interdependence or dependence, including any arrangements for financial support
- The existence of a sexual relationship
- The acquisition and ownership of property, including property they own individually
- The degree of commitment to a shared life
- Their care and support for any children under their care
- The reputation of the relationship (for instance, if they are deemed by friends and family as a committed couple)
How do I register a de facto relationship?
Couples in a de facto relationship can register their relationship with the Registry of Births, Deaths and Marriages in their state or territory. In Queensland, a couple can register their relationship as long as they are 18 or older and one partner is a QLD resident. Neither partner can be married or already in a registered relationship. There is no fee to register your civil partnership.
To end the registration, one or both parties can apply. If only one party applies, they are required to show proof that they have served a notice to the other party.
Do de facto couples have the same rights as married couples?
De facto couples have access to the same range of remedies in the Family Court as afforded to married couples.
How is property settled when a de facto relationship ends?
Starting in 2009, property settlements and financial orders for de facto couples have been the same as married couples' rights. De facto couples who are separating undergo the same process as divorcing couples, wherein they can both seek entitlements and can apply in court.
There are four criteria that must be met before applications can be made in court. A couple who should, at least, satisfy one of these four criteria. This includes:
- They were in a de facto relationship for, at least, two years
- There is a child of the de facto relationship
- Significant contributions were made by one party and it would not be fair to them if an order wasn't issued
- The de facto relationship was registered in a state or territory
When one of these criteria have been established, the couple must then prove to the Court that:
- They were in a genuine de facto relationship and that it has broken down
- They have a geographical connection the jurisdiction (i.e. QLD)
After this, separating de facto couples go through the same procedure married couples do. Mediation is recommended before a case proceeds to court, and from mediation a couple can work out an agreement that is then formalised by an Application for Consent Orders, or a Binding Financial Agreement.
Should the property case go to court, the court looks at the assets and contributions of each person to determine what they are entitled to and ensure a fair outcome is met. The Court takes into account the following:
- The parties' assets before the relationship
- The contributions made by each party to the relationship, including financial and non-financial contributions
- The total value of the divisible pool of assets, such as shares, property, superannuation, jewellery, and cars
- The future needs of each party and whether they will become the parent any children will live with
What can I do to protect my assets should my de facto relationship end?
To protect their assets, a de facto couple can enter into a binding financial agreement. This agreement works much like a prenuptial agreement and specifies how assets and liabilities will be divided. It's important to note that a binding financial agreement is a private agreement not sanctioned by the Family Court.
How can a family law attorney help me?
A family law attorney can give you the right legal advice before, during, or after a de facto relationship. In the event of a relationship breakdown, a family law attorney can also help negotiate a fair property settlement, make arrangements for any children in the relationship, and prevent future arguments.
Marino Lawyers can assist with difficult family law and related matters. Our family lawyers in Cairns have been involved in the negotiation and, where necessary, litigation of family law disputes, including issues relating to custody, spousal and child support, pensions, trusts, taxation, and family business matters. For more information, please call us at (07) 4081 6700. We have offices in Port Douglas, Cairns, Edmonton, Gordonvale, and Babinda.