Sometimes the couples have or adopt children together. When those relationships break down, the couples cannot get a divorce because they were never married. If they were in a de facto relationship, however, they may be able to turn to the courts to resolve financial issues that arise when their relationship ends. Parents in a broken relationship can always ask the court for parenting orders if they cannot resolve parenting issues on their own.
This eBook explains how the Family Law Courts deal with de facto relationships. The explanations provided here are not intended as legal advice. Every relationship is different. If you need help determining whether you were in a de facto relationship or how the law will resolve your particular issues, you should consult with a family lawyer.
A couple can be in a de facto relationship whether they are of the same sex or of different sexes. A married person can be in a de facto relationship with a person who is not his or her spouse. Individuals who are in a de facto relationship are defined as de facto partners.
Under Australian law, you are in a de facto relationship if you are living with someone and:
Courts look at these circumstances to decide whether a couple is living together on a genuine domestic basis:
These circumstances do not create a specific test. Not all circumstances need to exist. Rather, the court will weigh the circumstances that exist in each case and will take a common sense approach to deciding whether a couple is in a de facto relationship.
The children of parents who are in a de facto relationship are treated in the same way as children whose parents were married. If you are in a de facto relationship, have children together, and separate, you can ask the Family Law Courts to resolve any parenting disputes. Either parent of a child can apply for a parenting order, whether or not that parent was married to the other. In fact, the court can enter a parenting order whether or not the child’s parents were ever married, in a de facto relationship, or living together.
A parenting order can address several issues involving the children of a de facto relationship, including:
In most cases, parents will need to make a good faith attempt to resolve their dispute before asking the court to enter a parenting order. Those requirements are described in more detail in Children and Divorce, another eBook in this series. Parents who arrive at an agreement can ask the court to enter that agreement as a consent order. Our Consent Orders eBook explains how that is done and why you might want a consent order in your case.
While the court can enter a child maintenance order in unusual cases, in most instances child support is assessed administratively by the Child Support Registrar. The obligation to support a child financially exists whether the child’s parents were married, in a de facto relationship, or never living together. More information about child support obligations can be found in Financial Support for Children, another eBook in this series.
Until recently, a separating de facto couple could not turn to the Family Law Courts for assistance in making a property settlement. The rights and obligations of partners in a de facto relationship generally depended on the law of the state or territory in which they lived. That is no longer true in jurisdictions that have agreed to participate in a Commonwealth law that addresses the breakdown of de facto relationships.
The new Commonwealth law applies to de facto relationships that broke down on or after March 1, 2009 in New South Wales, Victoria, Queensland, Tasmania, the Australian Capital Territory, the Northern Territory, Norfolk Island, Christmas Island, and the Cocos (Keeling) Islands. It applies to de facto relationships that broke down in South Australia on or after July 1, 2010. The new law makes many provisions of the Family Law Act applicable to de facto relationships. These include the ability to ask the court for a financial order that divides property, including the split of superannuation, and for an award of maintenance.
If you do not want this law to apply to your relationship, you and your partner can enter into a financial agreement that specifies how your property will be distributed and what (if any) obligation the partners will have to maintain each other after they separate. To be binding, the agreement must be in writing and signed only after each party obtains independent legal advice.
Partners in a de facto relationship apply for maintenance or for a division of property by initiating a de facto financial cause in the Family Law Courts. Only those partners in a de facto relationship who meet one or the following criteria are eligible to begin a de facto financial cause:
A partner in a de facto relationship can initiate a de facto financial cause in any of these courts:
The de facto financial cause must be initiated within two years after the relationship breaks down. Before initiating a de facto financial cause, an applicant for a financial order must follow the procedures that are described in Preparing for Separation and Divorce, another eBook in this series. The process you will follow after applying for a financial order, including the financial disclosures you must make to each other, is described in our eBook, Property Settlements and Spousal Maintenance.
Property settlements after the breakdown of a de facto relationship follow the same principles that govern property settlements after a divorce. Section 90SM(4) of the Family Law Act 1975 requires the court to consider:
Taking these factors into account, courts engage in a four step process to make a property settlement:
The process that the Family Law Courts use to make a property settlement is explained in more detail in our eBook, Property Settlements and Spousal Maintenance.
For couples who live in one of the participating jurisdictions identified above, a Family Law Court has the power to order one partner in a de facto relationship to provide for the other after the relationship breaks down. The court must follow the principle that one partner should be required to provide maintenance for the other only:
Factors that a court must consider when deciding whether to award maintenance, and if so, in what form, are:
Warning and Disclaimer
De Facto Relationships by Alan Weiss is a self-help eBook written from the perspective of the author.
The author does not claim to be a substitute for a lawyer. Nor does he claim knowledge of any individual’s situation. This EBook does not give legal advice its aim is to give practical advice. Visit Aussie Divorce to find the right divorce lawyer.