De facto relationship entitlements can be complex not least of all due to the fact that one parties rights are often contested in court. Any de facto relationship separation entitlements you may have will be dependent on things like the length of time you have been in a de facto relationship, your status as a couple including how others viewed you both a s a couple, the de facto relationship assets amassed during the relationship and the contributions you have made to those assets.
The laws governing de facto relationships have changed and now de facto couples, upon separation, can obtain property settlements or have de facto entitlements under the Family Law Act 1975 in much the same way married couples do.
Keep in mind that the laws will also vary depending on where you reside &/or have conducted the majority of your relationship. Family Law Courts now have the ability to order a division of any relationship assets once a relationship is proven to have been a de facto relationship. This may include any superannuation as it can now be split. Since these changes to the laws governing de facto relationships there has been a huge increase in the number of de facto couples seeking the courts determination on de facto relationship entitlements.
So what does that mean for you? This will depend largely on who holds the majority of the wealth in the relationship. If you are the wealthier party you may be interested in protecting your wealth in the event of a break up? If you are the less upwardly mobile party you may be interested in ensuring the status of your relationship is easily definable as a de facto relationship, or understand what you need to do now to ensure you can prove your relationship was a de facto relationship?
The reason the status of your relationship matters is this; if you are found to be in a de facto relationship or your partner agrees you were in a de facto relationship you will have de facto relationship entitlements. The flip side of that is if your ex partner contests the jurisdiction of the court to hear the matter on the basis that you were not in a de facto relationship, you will then need to prove the relationship before the court and if successful you can then seek a property adjustment.
Jurisdiction matters are costly to fight & keenly argued. If you lose this threshold argument you will not be able to pursue any de facto relationship entitlements.
The Family Law Courts can make property adjustment orders if any number of the following is met:
- the period or the total of the periods of the de facto relationship. It must be at least 2 years in order to claim de facto entitlements
- there is a child of the de facto relationship
- one partner made substantial financial or non-financial contributions to their property or as a homemaker or parent and serious injustice to that partner would result if the order was not made, or
- the de facto relationship has been registered in a State or Territory with laws for the registration of relationships.
Relationships can be complex, the Courts will consider all aspects of the relationship in order to decide if a couple are in a de facto relationship or not. You or your ex partner must either agree that your relationship was a de facto relationship or prove that the relationship was in fact a de facto relationship in order to claim de facto relationship separation entitlements.
This criteria is called “threshold criteria” and includes:
- How long the relationship existed for and this can be an aggregate of periods if there were breaks in the relationship.
- Did you live together and if so for how long?
- Was there a sexual relationship and over what periods of the relationship did this occur.
- Were you financial dependent on each other and what financial arrangements were made between the two of you.
- Did you acquire & own property together? This can include real estate, cars, boats, furniture etc.
- Were you both committed to a shared life? Were you planning your future together?
- Some couples register their de facto relationships. Was your relationship registered in a State or Territory/
- Did you have children together or did you provide support to your partner’s children? Support could be financial and/or running the household for example.
- Did your friends consider you to be a committed couple?
Keep in mind that your relationship does not have to meet all of these criteria to qualify for de facto entitlements. The courts have made findings of a de facto relationship being found to exist when there was no sexual relationship & the couple did not live together full time. Once the threshold or gateway criteria are met the question then becomes not “if” there are any de facto relationship entitlements but rather how much the de facto entitlements amount to.
That dovetails nicely into the purpose of this article, which is to help you identify (any) de facto relationship separation entitlements. Put simply for relationship property will be divided in a fair manner, the Family Court will look at the following in detail:
- What were the asset holdings of each person before the de facto relationship? The relevance of this point will depend on this is will depend on how long you were both in the relationship and any contributions each of you made to property purchased during the relationship and contributions made by one person to any assets owned by the other person.
- What is the total value of the de facto relationship asset pool? This may include real estate, share trading, recreational assets such as boats and campervans and any retirement planning assets such as superannuation.
- What each of you contributed over the course of the de facto relationship? This may include:
- contributions such as salary, money paid towards properties or improvements to properties
- gifts, inheritances from family or friends and who paid for household expenses.
- Were any DIY renovations carried out by one person and contributions towards running of the family & home, providing for children or household tasks?
- The future needs of both parties will also be considered, including who will provide ongoing care for children, what are the future earning capacities of both parties, and any financial resources available to both parties.
You will be required to take part in mediation before the matter gets to court. This means you will have an opportunity to negotiate with your ex partner and potentially settle the matter before it gets to court.
If the matter goes to Court and the Court decides what proportion of relationship assets should be given to each party which forms the de facto relationship entitlements, it can make orders about how this is to occur. For example the Court may order:
- assets like the family home should be sold and divided as per court orders;
- ownership of assets should transferred into one parties name;
- ongoing spousal maintenance to be provided; and/or
- super funds be split.
Proving the relationship was a de facto relationship for the purpose of a de facto relationship entitlement is not as easy as it may seem. Relationships are complex and nowhere is this more evident than when trying to establish whether or not people are in a de facto relationship for the purposes of Family Law. Relationships are often a journey of commitment with both parties ebbing & flowing in their commitment to the relationship at different times. It is this factor that can make it hard to determine when a relationship changes into something more committed and can then be classed as a de facto relationship.
Don’t’ think it will be easy! These matters are often hard fought and keenly contested by both parties. They are expensive to run and can cost in the vicinity of $80,000 to $200,000.
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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