“When am I in a de facto relationship?” is a commonly asked question when couples form a new relationship and start thinking about protecting assets they may have acquired before the relationship or if separating de facto couples are dividing their assets.
Whether a de-facto relationship exists for separating couples is important as the Court must determine whether couples fall into the Family Law Act 1975 jurisdiction to seek a property division or spousal maintenance.
Couples can register a de facto relationship with Births, Deaths, and Marriages. If a de facto relationship is registered, couples will be issued a certificate confirming that a de facto relationship exists. If a de facto relationship is registered, it may create rights for a property division even if the couple has not been living together for two years. Registering a de facto relationship is not mandatory.
Section 4AA of the Family Law Act 1975 (Cth) defines a de facto relationship for Family Law purposes. Couples who are same-sex or opposite-sex are included in the definition of a de facto relationship pursuant to the legislation. If a person is legally married, they can still be classed as being in a de facto relationship with another person they are not married to.
If there is a dispute about whether a de facto relationship existed, the Court will generally have regard to a number of matters as follows:-
- Whether the couple lived together for at least two years.
- Whether there are any children from the relationship.
- Whether either party made substantial contributions to the relationship, either financial or non-financial contributions.
- Whether either party acquired, owned and used property together.
- Whether there was a sexual relationship.
- Whether the parties presented to family and friends as a couple.
De facto couples can enter into a Binding Financial Agreement at the commencement or during the relationship to protect assets from any adjustments made under the Act after separation.
Most de facto relationships will end amicably. In this case, separating couples can enter into agreements without Court involvement or through an agreement formalised by the Court called an Application for Consent Orders. Sometimes, there are disputes regarding property division or children, and de facto couples may have to apply to the Court for Orders.
The time limit for making an application to the Court for the division of property or spousal maintenance claims is two years from the date of separation for de facto couples.
If you need advice about the legal status of your relationship, contact Grace Family and Collaborative Law today at 1300 414 855 to book a free 15-minute clarity call with one of our expert Collaborative Family Lawyers.