de facto relationship separation entitlements

De Facto Couples With Children

Issues relating to the children of de facto couples fall under the Family Law Act, and thus are dealt with through The Family Court and Federal Circuit Court (Federal Magistrates Court). Irrespective of separation the Law holds both parents responsible for the continued support of children of the de facto relationship. It does not matter if you enter a new relationships or can’t stand the sight of each other. Irrespective of any de facto relationship separation entitlements the Courts view is that you are both expected to continue to parent your children.

de facto relationship separation entitlementsWhen a de facto relationship breaks down, reaching a de facto settlement out of court saves you and your family considerable time, stress and money. In order to negotiate a settlement effectively you must be aware of your de facto relationship separation entitlements.

If you file an application in either the Federal or Family Court you will be required to take part in what’s called “pre-action procedures”. In short these are steps designed to see if the matter can be settled without the Courts being further involved. Pre action procedures include both parties taking part in dispute resolution or mediation with a registered dispute resolution practitioner. This is a Court requirement & once completed you will be issued with a certificate from the accredited practitioner. The Courts will not make any further orders without this certificate. This is a requirement except in circumstances where there is family violence, child abuse or urgency.

The only variation in this process will occur if there is a de facto financial agreement in place commonly know as a Binding Financial Agreement. This type of agreement means the separating couple has opted out of the Court jurisdiction to hear their matter & instead abide by the terms of the agreement. The binding financial agreement once signed sets out all de facto relationship separation entitlements.

If you are unable to read a de facto property settlement agreement out of Court then the next step is for you to make an application for parenting orders. This application is made to either the Family Court of the Federal Circuit Court (Federal Magistrates Court). Parenting Orders can be applied for by:

  • Children of the relationship
  • Grandparents
  • A person who has concerns for the well being of the children

Irrespective of de facto entitlements on separation the decision regarding children (of the relationship) is then made through a Court hearing. The Court bases its decision on what is in the best interest of the child or children. More information about how the Court makes its decision can be found in Section 60CA, Section 60CC and Section 64B of the Family Law Act 1975.

The Child Support (Assessment) Act, states that the primary care giver to children from a de facto relationship may claim child support from their ex partner. The Child Support Agency administers all child support matters, and will identify the amount of child support to be provided. The Child Support Agency will look at each parent's income, the number of offspring they support and living arrangements. Child support is part of your de facto relationship separation entitlements.

You may decide to negotiate and enter into a child support agreement directly with your ex partner, without going through the Child Support Agency. This is not part of your de facto property settlement. You will need to prepare a private child support agreement. Templates are available, simply visit the resources tab & search the resource library. You will both need to take family law advice to ensure the best outcome for you and your children and to make the child support agreement you enter into legally binding.

If you apply for spousal maintenance, prior to making any maintenance orders as part of your de facto separation entitlements or property adjustment orders as part of your de facto entitlements on separation the Court will seek to satisfy itself of the following:

  • either or both parties to the de facto relationship were ordinarily resident in a participating jurisdiction of the Court when the application for orders was made; and that either:
  • both parties to the de facto relationship were resident in the jurisdiction of the Court presides in for at least one third of the; or
  • the applicant made substantial contributions, in relation to the de facto relationship; or
  • both parties to the relationship were resident in a participating jurisdiction when their relationship ended.
  • That no de facto financial agreement exists between the parties to the relationship that would otherwise relieve the Court of its jurisdiction to hear the matter.

You have a 2 year window to make an application for a de facto property settlement or spousal maintenance order. You must ensure you make an application within this time period to ensure access to de facto relationship separation entitlements. A person applying to the Court for orders outside of this timeframe may seek leave from the Court to make an application after the 2 year window. However the Court must be satisfied of that either:

  • financial hardship may be caused to the applicant or a child of the relationship if leave were not granted; or
  • the party's circumstances at the end of the standard application period were such that it was found that the party would have been unable to support themselves without an income tested pension, allowance or benefit.
  • That no de facto financial agreement exists between the parties to the relationship that would otherwise relieve the Court of its jurisdiction to hear the matter.

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.

We have a suite of resources on the site that can help you build your knowledge about de facto relationship separation entitlements when children are involved & obtaining a de facto property settlement. Scroll through the resources below or click through to the resources tab and filter based on your areas of interest. If you want to access our resources you can join the site as a member or simply purchase the individual resources you require.

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    • Bronze Resource
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      Living Together Checklist

      This resource explores issues associated with living together including; marriage, children, finances & much more……....
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    • Silver Resource
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      Existence of a Relationship Checklist

      This resource details the criteria a Court would use to determine the status of a relationship in an easy to understand format……....
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      Property & Financial Matters Upon De Facto Relationship Breakdown

      This free resource provides a general outline of the relevant Family Law reforms, their genesis & much more…......
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      Child Support Fact Sheet

      This resource details issues relations to child support including: payment procedures, calculation & much more…......
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      Consent Orders Fact Sheet

      This resource details issues relation to consent orders including; parenting plans v’s consent orders & much more…......
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      De Facto Relationship Fact Sheet

      This resource details issues relating to de facto relationships including; relationship criteria, BFA’s & much more…......
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      Family Violence Fact Sheet

      This resource details family violence issues including; court process, defining family violence & much more…......
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      Binding Financial Agreement Fact Sheet

      This resource details issues relating to BFA's including; advantages & disadvantages, inclusions & much more……....
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      Mediation & Family Dispute Resolution Fact Sheet

      This resource details issues relating to mediation & dispute resolution including; tips & strategies for mediation……....
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    • Platinum Resource
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      Property Settlement Fact Sheet

      This resource details issues relating to property settlement including: court process, superannuation splits & much more……....
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      Spousal Maintenance Fact Sheet

      This resource details issues relating to spousal maintenance including: calculation, time limits & payment issues……....
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      Draft Applicant Case Outline

      This resource sets out case strategy for an Applicant in a de facto jurisdiction matter & much more….....
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    • Silver Resource
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      Binding Child Support Agreement Template

      This resource enables parents to document child support arrangements & includes instructions for completion…......
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    • Platinum Resource
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      Pre De Facto BFA Sample Clauses Template

      This resource provides a set of sample clauses which are editable & can be attached to a pre de facto BFA……....
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    • Silver Resource
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      Financial Statement Family Law Court Template

      This resource is a financial statement & must be completed & filed with the Court in order to commence proceedings……....
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    • Gold Resource
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      Limited Child Support Agreement Template

      This resource enables parents to document child support arrangements & review them every 3 years…......
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    • Platinum Resource
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      Cohabitation Agreement Sample Clauses Template

      This resource provides a set of sample clauses which are editable & can be attached to a cohabitation agreement……....
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    • Platinum Resource
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      Pre De Facto Relationship BFA Template

      This resource enables couples who are not yet living together to create their own BFA & is fully editable……....
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    • Bronze Resource
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      Schedule of Assets & Liabilities Template

      This resource provides structure for declaring all of assets & liabilities & is used during the settlement process……....
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      Separation Agreement Lump Sum Super Split Template

      This resource is a tool to aid in the settlement of all financial matters post separation & is fully editable…......
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      Separation Agreement Percentage Super Split Sample

      This resource enables you to review a completed separation agreement with a percentage super split…….....
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      Separation Agreement Percentage Super Split Template

      This resource is a tool to aid in the settlement of all financial matters post separation & is fully editable…......
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    • Gold Resource
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      Draft Respondent Case Outline

      This resource sets out issues pertinent to defending a de facto jurisdiction matter & much more……....
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    • Gold Resource
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      Separation Agreement Sample Clauses Template

      This resource provides a set of sample clauses which are editable & can be attached to a separation agreement……....
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    • Gold Resource
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      Shared Parenting Plan Agreement Template

      This resource enables parents to clearly document parenting arrangements & provides a structure for discussions…….....
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    • Bronze Resource
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      Superannuation Information Kit Family Court Template

      This resource provides you with a template to detail all of your superannuation entitlements & is used during separation……....
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    • Bronze Resource
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      Will & Testament Template

      This resource provides you with an editable template to create & manage your Will easily & cost effectively…….....
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      Will Notes To Executor Template

      This resource provides you with an editable template to create executor notes & manage all Will reviews…….....
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    • Platinum Resource
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      De Facto BFA Template

      This resource enables couples who are living together to enter into a Binding Financial Agreement & is fully editable……....
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    • Gold Resource
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      Pre De Facto Relationship BFA User Guide

      This resource sets out how to complete the Pre De Facto Binding Financial Agreement Template…......
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    • Silver Resource
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      De Facto BFA User Guide

      This resource sets out how to complete the De Facto Binding Financial Agreement Template…......
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    • Gold Resource
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      Pre De Facto BFA Sample

      This resource provides you with a completed sample Pre De Facto Binding Financial Agreement and can be used as a guide……....
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    • Gold Resource
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      De Facto BFA Sample

      This resource provides you with a completed sample Binding Financial Agreement and can be used as a guide……....
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    • Platinum Resource
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      How To Make A Living Together Agreement

      This resource explains why having a living together agreement protects you & your partner in the event of a breakup & much more….......
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    • Bronze Resource
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      Will & Testament User Guide

      This resource sets out how to complete the Will & Testament template. Always update you Will after a relationship breakdown………....
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      Draft Applicant Relationship Letter

      This resource sets out the Applicant’s approach in a de facto jurisdiction matter. It highlights the strategy used & much more…......
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    • Bronze Resource
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      Budget Worksheet

      This resource helps identify costs associated with living together as a couple & provides a fully editable budget….......
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      Draft List Of Discovery Documents

      This resource details a draft list of discovery documents requested by an Applicant in a de facto jurisdiction matter…......
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    • Silver Resource
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      Response to Draft Relationship Outline Letter

      This resource sets out the Respondent’s approach in a de facto jurisdiction matter. It highlights the strategy used & much more…......
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      Draft Applicant Response to Witness Affidavit

      This resource highlights the process involved in responding to a witness affidavit & includes tips for responding effectively…......
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