de facto entitlements on separation

Relationship Status

In this day & age “relationship status” matters, especially when considering de facto entitlements on separation. One of the most surprising things we see so often is the level of disagreement between separating couples about what their relationship status actually was. One party invariably sees the relationship as a fully committed de facto relationship while the other argues it was nothing more than a “fling” with no commitment to a shared future.

de facto entitlements on separationBeing upfront & clear with your partner about your relationship status and your level of commitment to the relationship can save you heartache and financial worry in the future. By having these discussions couples may elect to opt out of de facto relationship laws and enter into a binding financial agreements.

When we refer to the term relationship status we are talking about how a relationship is viewed legally and whether it is subject to de facto entitlements on separation. You could be considered to be in a de facto relationship with another person if you:

  • Are not married; and
  • Are not related to each other; and
  • Are in a relationship as a couple and live together on a genuine domestic basis.

These are not exact or finite requirements as you can still be in a de facto relationship with another person and therefore subject to de facto relationship laws, if one of the partners is:

  • Married to another person; or
  • Or in a second de facto relationship; or
  • Is already in a registered relationship.
  • Providing you are a committed couple you can still be found to be in a de facto relationship even if your relationship is an open relationship with different parties involved.

Living Together Or Not?

You will hear the term “living together on a genuine domestic basis” a lot. De facto relationship laws state that you need to be living together on a genuine domestic basis in order to access de facto entitlements on separation. In essence the term ‘living together’ means you share a home.

There have been many Court rulings where couples who simply spent nights at each others homes on a regular basis over a longer term were found to be in de facto relationships.

The Courts have also deemed couples to be ‘living together’ if they were:

  • living apart for a short term due to work commitments or alike; or
  • living apart due to illness or alike.

Are you living together as a couple on a genuine domestic basis?

To be in a de facto relationship and subject to de facto relationship laws, you must be living together as a couple on a genuine domestic basis. This means that people who live together as friends and share a house together are not considered to be in a de facto relationship.

Separating couples who wish to exercise their de facto separation rights must first either mutually agree they were living together as a couple on a genuine domestic basis or apply to the court & have the matter determined. Couples who do not agree they were living together on a genuine domestic basis will need to provide evidence of de facto relationship. The Courts will consider the following circumstances:

  • length of the relationship;
  • did you live together and for what periods;
  • did you have a sexual relationship;
  • were you financially involved with each other and to what extent;
  • did you support each other financially and to what level;
  • did you buy property together;
  • did you both have a shared commitment to a life together;
  • did you have children together;
  • who did the majority of household tasks; and
  • did other people know you were in a relationship.

It is not necessary for any one of these factors to be found in order to determine whether two people have a relationship as a couple and therefore subject to de facto entitlements on separation.

These things will only matter if your relationship breaks down & you seek a property adjustment through the courts. Should your ex partner decide to challenge the relationship and argue that you were not in a de facto relationship then the onus falls to you to first provide evidence of de facto relationship in order to get the courts jurisdiction to hear the matter and then seek property division orders.

Keep in mind that by challenging the courts jurisdiction it prevents the Applicant from getting any financial relief through the courts until the jurisdiction matter is heard & decided. In real terms this can take anywhere from 12 to 24 months to run its course & has significant costs attached to it. The applicant must win this threshold argument otherwise the court has no jurisdiction to divide the property of the relationship. Binding financial agreements also enable both parties to opt out of the Courts jurisdiction to resolve their financial matters upon breakdown of the relationship.

Jurisdiction is often used as a legal strategy by the Respondent in these matters. The onus of proof falls to the Applicant & the costs associated with running the jurisdiction matter must be born by the applicant. In many cases the Applicant is seeking a property adjustment & is at a significant financial disadvantage due to the end of the relationship. One would think it would be easy to prove a long term de facto relationship. The reality is that it can be a difficult exercise particularly if the respondent has the majority of the financial resources at their disposal and is prepared to argue all evidence of de facto relationship.

Legal Requirements You Need To Be Aware Of:

To be recognized as a de facto partner and therefore be subject to de facto relationship laws you must have been in a de facto relationship that lasted at least 2 years.

There are other factors that the courts must be satisfied of in order recognise a relationship as a de facto relationship. The Courts will be able to make property orders where:

  • the de facto relationship has lasted at least 2 years in total (despite periods of separation);
  • there is a child of the de facto relationship;
  • one of the partners has made a substantial financial or non-financial contribution and serious injustice would result if the order was not made; or the de facto relationship has been registered in the ACT, Tasmania or Victoria.

Remember, the information contained on the site does not constitute legal advice. If you think you need legal advice you should contact an Accredited Family Law Specialist.

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