De Facto Separation Entitlements

De Facto or Girlfriend?

We constantly hear debate around de facto separation entitlements and what constitutes a de facto relationship as this relates to property division when de facto relationships breakdown. We hear about all kinds of relationships day in and day out so you would like to think that we know the answer, but the truth is, every relationship is different. This constant debate highlights just how confusing the laws that govern de facto relationships can be especially in the event of a relationship breakdown and the need to establish de facto separation entitlements .

De Facto Separation EntitlementsBefore you try & work out if yours is a de facto relationship, it is important to first understand who or why the question is being asked. This is important because if you are trying to understand whether a relationship is considered to be a ‘de facto’ relationship for the purposes of the Family Law Act (Cth) 1975 (you might have separated and be trying to understand your de facto separation entitlements) then you will need to ensure your relationship meets a certain set of relationship criteria. If you are looking at Immigration Law or even dealing with Centrelink and other Government Departments the criteria for determining the type of relationship you are in will be different again.

The challenge is that depending on the area of law you are dealing with, the answer to this question can markedly different. Given the purpose of It’s Over we focus on what is considered a ‘de facto relationship’ when it comes to the Family Law Act for the purposes of property division when de facto relationships breakdown.

There are generally two main types of relationships that are governed by the Family Law Act – marriages and de facto relationships.

A marriage is perhaps the easiest to define and understand as a married couple will have a certificate that evidences the day on which they entered the legal union of marriage. You are either married or not you can’t be ‘sort of married’.

De facto relationships are more difficult as two parties to a relationship can see it in a very different light. What one person considers to be a committed relationship almost like a marriage (albeit without the certificate and ceremony) the other can consider an uncommitted relationship, or not even a ‘relationship’ at all. This is especially evident when parties to a de facto jurisdiction claim attempt to show proof of a de facto relationship or deny the existence of the relationship.

Where the presentation of a marriage certificate is enough to establish that you were married and thereafter enliven the necessary sections of the Family Law Act that might relate to the division of your property, the difficulty with de facto relationships is that there is very rarely such clear evidence of an intention to enter into a committed relationship and one must be able to provide proof of the de facto relationship to enliven the courts ability to hear the matter, determine de facto separation entitlements & divide property of the relationship.

Many de facto relationships grow and change over time. It can sometimes be very difficult after a de facto relationship breakdown to look back in time and pinpoint the exact moment that you consider your relationship went from just ‘a relationship’ to a committed de facto relationship. The date a relationship shifted from “dating” to a more committed de facto relationship becomes key when determining de facto separation entitlements. In some states in Australia you can ‘register’ your de facto relationship but this, in practice, is not common.

The general legal test for determining whether a couple are in a de facto relationship or not is whether you have been ‘living together on a genuine domestic basis’ for more than 2 years prior to the de facto relationship breakdown.

Sounds very fancy, of course, and the terms ‘genuine domestic basis’ are broad and intended to refer to the many varied types of relationships that exist in our society. There is a list of relationship criteria that will be considered to determine if a relationship is a ‘de facto’ relationship when determining property division when de facto relationships breakdown.

These include:

  • How long you’ve been together as a couple? This should include periods where you dated but did not live together.
  • Did you live together? If so did you share a home (s) and to what extent?
  • Did you have a sexual relationship?
  • How financially involved were you? Did you provide each other with financial support?
  • Did you buy property together? Did you renovate property together?
  • Were you ever committed to sharing your lives together? For example, were you engaged?
  • Have you ever had your relationship formerly recognized?
  • Did you have children together? Did you care for each other’s children?
  • How do others view your relationship? Do friends & family view you as a committed couple?

Once you have established that a relationship is a ‘de facto relationship’ you then need to show that it lasted more than two years before the Family Law Act can assist you. In other words, unless you were living together as a couple, ‘on a genuine domestic basis’, for at least two years, it is unlikely you will be able to pursue de facto separation entitlements. This is called the ‘two-year rule’, it is also called a “threshold issue” in so far as it must be proven or agreed before the courts jurisdiction is enlivened allowing the court to hear the matter.

There seem to be many misnomers about the required length of a de facto relationship when it comes to Family Law. We have had members who are absolutely convinced that after six months the Family Law Act will take effect. This is simply not the case…. save for two exceptions below.

There are two main exceptions to the two year rule:

  • There is a child of your de facto relationship; or
  • One of you has made such a significant contribution to the assets of the relationship that it would be unjust if Orders were not made. An example of this might be that the relationship lasted only eighteen months but one party made a significant lump sum payment, say $100,000, to reduce the other spouse’s mortgage. In this circumstance it may be appropriate that Orders are made to divide the existing property between the couple even though their relationship did not meet the usual two-year threshold.

During a difficult separation there can be benefits for one party to a de facto relationship to try and establish that there was no de facto relationship at all. This means that the Family Law Act would not apply in the event proof of de facto relationship could not be established. This means the other party to the relationship may not be able to seek a division of their financial affairs in the usual way as they cannot enliven the courts jurisdiction.

This is why these maters are so keenly contested in the initial stages. If the applicant is unable to establish proof of de facto relationship and pass the threshold issue then the matter will fail. This is commonly known as a knockout blow.

If you consider yourself to be in this category you will need to seek specific advice from a specialist Family Lawyer as the process of proving or even disproving a De facto relationship can be expensive and difficult.

Just to summarize the key points:

  • When it comes to your children, it does not matter if you are married or in a de facto relationship the law is the same.
  • When considering your financial affairs, if you are in a de facto relationship you need to establish that is lasted more than two years and then the law applies to you in almost an identical way as it does for married couples.
  • If you were in a de facto relationship for less than two years you should seek legal advice from a Family Law specialist specific to your circumstances.

There is a lot of misinformation about de facto relationships & de facto relationship breakdowns. Here are just a few myths. Don’t be fooled!

“It’s always 50/50 right?”

In our experience when it comes to property division when de facto relationships breakdown, there is no automatic 50/50 rule and this applies for married couples as well!

“But I paid for everything so may ex won’t get anything will they?

Based on member feedback regarding property division & de facto separation entitlements when it comes to the division of assets and income at the end of a relationship, a whole lot of things are considered to work out how to justly & divide things between a couple. This is a much broader consideration that just who earned more money or paid for things. The legal process also considers the role of each person, whether they were parents, what they did to assist the family and a whole range of other matters.

“I get to keep what I had at the beginning, right?”

Hmmm, in our experience and member comments post settlement… the short answer is sometimes… and sometimes not. Again, it will depend on a large number of different factors such as did you enter into a Binding Financial Agreement at the beginning of your relationship. You will need to meet with a specialist family lawyer to understand how the law might apply in your circumstances before you start trying to sort too much out yourself.

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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