De Facto Relationships

Many people live together as would a married couple without getting married. This is true of same-sex couples and of opposite-sex couples.

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.

What is a de facto relationship?

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:

• You are not married to each other;
• The person with whom you are living is not your parent, child, or sibling; and
• In light of all the circumstances, you are living together on a genuine domestic basis.

Courts look at these circumstances to decide whether a couple is living together on a genuine domestic basis:

• How long the relationship has lasted;
• How long and under what circumstances the couple has lived together;
• Whether a sexual relationship exists;
• Whether they depend on each other financially or have made any arrangements for financial support;
• How they own, use, and acquire property;
• Whether they have made a mutual commitment to a shared life;
• Whether they have registered their relationship in a State or Territory;
• Whether they have children together and how they provide care and support for their children;
• Whether they are generally known to be in a de facto relationship and are open about it.

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.

Parenting issues 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:

• Where the children will live;
• What time the children will spend with the parent with whom they do not live;
• What other forms of contact the children will have with the parent with whom they do not live; and
• How responsibility will be allocated for making decisions about the children (such as health care, education, religion, and after-school activities).

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.

Financial issues - initiating a de facto financial cause

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:

• The de facto relationship existed for at least two years; or
• The partners in the de facto relationship had a child together; or
• The de facto relationship is registered in a state or territory; or
• One partner in the de facto relationship made substantial contributions to the acquisition or improvement of the partners’ property, or made substantial contributions to the other’s welfare, and failing to permit a financial cause to be initiated would be seriously unjust.

A partner in a de facto relationship can initiate a de facto financial cause in any of these courts:

• The Family Court;
• The Federal Court of Australia;
• The Supreme Court of the Northern Territory of Australia;
• A court of summary jurisdiction in a participating jurisdiction.

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

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:

• The financial contributions made by each partner in a de facto relationship, directly or indirectly, to the acquisition or improvement of property;
• Other contributions made by each partner to the acquisition or improvement of property;
• Contributions made by each partner to the welfare of the family;
• The effect an order would have on a partner’s earning capacity;
• The factors that affect an award of maintenance (discussed below);
• Child support assessments; and
• Other court orders.

Taking these factors into account, courts engage in a four step process to make a property settlement:

• Step One: Identify assets and liabilities to determine what belongs in the property pool.
• Step Two: Identify contributions made by each party.
• Step Three: Identify the other relevant factors discussed above (e.g., earning capacity, child support, and factors relevant to maintenance).
• Step Four: Make a just and equitable order.

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.

Financial issues - maintenance in a de facto relationship

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:

• to the extent that the partner being asked to provide maintenance is reasonably able to do so, and
• if the partner seeking maintenance is unable to provide for his or her own support adequately because
• that partner has the care and control of a minor child of the de facto relationship, or
• that partner’s age or disability makes gainful employment unrealistic, or
• another adequate reason justifies an award of maintenance.

Factors that a court must consider when deciding whether to award maintenance, and if so, in what form, are:

• the length of the de facto relationship and its impact on each partner’s earning ability;
• the extent to which the partner seeking maintenance contributed to the earning ability of the other partner;
• each partner’s age and state of health;
• the income and property of each partner and the ability of each to maintain gainful employment;
• the likelihood that a partner could become employed or earn more money if maintenance is provided for the partner’s education or training;
• child care responsibilities for a minor child of the de facto relationship;
• child support a partner is paying or receiving;
• other commitments and responsibilities of each partner;
• pension eligibility of each partner;
• a reasonable standard of living for each partner;
• the effect of current cohabitation with another person on a partner’s financial circumstances; and
• other facts that are relevant to a fair determination.

Information about how to apply for a financial order that awards maintenance can be found in Property Settlements and Spousal Maintenance, another eBook in this series.

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.