A person is said to be in a de facto relationship with another person if the persons are not legally married to each other; the persons are not related by family, and having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis. (Section 4AA (1), Family Law Act 1975) In short, they are living together as husband and wife without the benefit of a valid marriage.
It should be noted that the law does not make any distinction as to who should enter into a de facto relationship. A de facto relationship can exist between can exist between 2 persons of different sexes and between 2 persons of the same sex or even if one of the persons is legally married to someone else or in another de facto relationship. (Section 4AA (a) and (b), Family Law Act 1975)
As regards to child maintenance, it does not matter whether the parents of a child are legally married or in a de facto relationship. The parents are equally liable for the support of their children even if their relationship is a de facto relationship. Their obligation to support their children under the Family Law Act 1975 is legally demandable during the de facto relationship or even after the de facto relationship.
The right of a spouse to demand maintenance may not always be available. This is because State laws may or may not provide the right to demand it. Thus it is important to know what state law is applicable to you based on where you live. It is best to seek a legal advice from a lawyer so that you will be guided accordingly whether or not you are allowed to apply for a spousal maintenance based on your personal circumstance such as your financial capability to support yourself. It is also worthy to note that under the Family Law Rules 2004, a case assessment conference must be conducted on the first court date for an application for spousal maintenance.
It is important to know that it is always a good practice to make an agreement before, during or after a de facto relationship. While it is not necessary, making an agreement as regards to property and financial matters will not only save you money but to also avoid from any conflict and disagreements if later on you decide to end the de facto relationship. Under the Family Law Act 1975, de facto partners may enter into agreement governing their property and financial relations if the de facto relationship terminates.
If two persons are planning to enter into a de facto relationship with each other, they may make a written agreement regarding property and financial resources on how all or any of those will be distributed in the event of the breakdown of de facto relationship.
The parties may also make a written agreement during the de facto relationship if they have not executed a written agreement before starting the de facto relationship. And after the breakdown of the de facto relationship, the parties to the former de facto relationship may make a written agreement with respect to how their property or financial resources that was acquired during the former relationship is to be distributed.
A de facto financial cause is a proceeding between the parties to a de facto relationship with respect to the maintenance of one of them after the breakdown of their de facto relationship; or a proceeding between a party to a de facto relationship and the bankruptcy trustee of a bankrupt party to a de facto relationship. It may also refer to a proceeding between the parties to a de facto relationship with respect to the distribution, after the breakdown of the de facto relationship, of the property of the parties or either of them. (Section 4, Family Law Act 1975)
If you are filing a de facto cause, you must file it in a proper court. Under the Family Law Act 1975, a de facto financial cause may now be instituted in the Family Court, or the Federal Circuit Court of Australia, or the Supreme Court of the Northern Territory of Australia or a court of summary jurisdiction of a participating jurisdiction.