What is considered a de facto relationship in australia?
a de facto relationship, like marriage, is governed by the family law act of 1975, s 4(1).under this law, de facto couples enjoy the same rights as married couples. but how do we define a de facto relationship?
When determining whether a relationship between unmarried persons creates the same legal protections as a marriage, Courts consider the following factors:
- Length of the relationship
- Living arrangements
- Existence of a sexual relationship
- Degree of financial dependence or interdependence, and any arrangements for financial support
- Ownership, use, and purchase of property (including property individually owned)
- Whether the relationship is registered under state or territory laws
- Degree of mutual commitment to a shared life
- Whether they care for and support the children together
- How the relationship is perceived by the public
- De Facto relationship and financial dispute
Property Disputes - De Facto Couples
While the law encourages de facto couples to make a genuine effort in resolving property disputes before instituting legal action, in some cases, it is just unavoidable. The Family Court and Federal Circuit Court have jurisdiction over applications for financial orders relating to the division of properties. However, to be qualified for a property settlement you need to prove that the relationship existed for at least two years. Otherwise, you are required to submit additional proof in order to claim for a property settlement.
The Family Law Act provides for guiding principles in resolving property disputes. The Court will look into the current asset and debts in the relationship, direct and indirect financial contributions and non-financial contributions of both parties, and the future needs of the partner or if there are children involved. Read more about property settlement
You Must Apply for De Facto Financial Orders Within Two Years
Two years after separation is the time limit set to apply for property settlement or maintenance as a matter of right when the separating parties were not married. Once the two years limit has prescribed, such applications are subject to the consent of both parties and the discretion of the court. On the other hand, there is no time limit set for applications of child support.
Issues Relating to the Children of De Facto Couples
Matters 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.
- The Family Law Act sections 61B to 61DB, emphasizes equal shared responsibility, meaning both parents are required by law to equally share the responsibility of caring for the children. According to the Family Law, the following children are considered as children of both parents in a de facto relationship:
- children born through assisted/artificial conception to lesbian couples;
- children adopted by same-sex couples; and
- children born under certain surrogacy arrangements recognised under a state or territory scheme; also, the Parliament of New South Wales has recently passed laws allowing recognition of certain surrogacy arrangements.
- The parent primarily taking care of the children has the right to claim for child support from the other parent. There is no time limit in asking for child support. Hence, a parent can apply anytime in court for child support.
Children from a defacto relationship
Under the Child Support (Assessment) Act, the primary carer of children from a de facto relationship can make a claim for child support from the other parent. The Child Support Agency is responsible for administering your child support arrangements and assessing the amount of support which should be provided. The decision is based on each parent's income, the number of children and their living arrangements.
The Right to Maintenance for De Facto Couples
Spousal maintenance is not a benefit automatically granted by the court. Provisions in the Family Law Act 1975, specifically section 72 and section 90SF(1), provides for guidelines in determining if a person is entitled to a maintenance order. The court will only make an order after gauging the needs and circumstances of the person applying for spousal maintenance and the capacity to provide support by the other person. An additional consideration is if a child is living with the person who filed the application.
Applications for spousal maintenance must be filed with Family Courts within two years from the time of separation. Naturally, if either party dies or the applicant remarries the spousal maintenance obligation ceases.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.