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Mathews Family Law & Mediation Specialists have created many detailed articles answering the most common questions people have in relation to their rights and Australian Family Law.


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De Facto Relationships – The Basics

De Facto Relationships – The Basics

A de facto relationship exists where two people, who are neither married nor related to each other, live together on a genuine domestic basis and includes same-sex relationships.

In determining whether a de facto relationship truly exists, the court will consider several factors, including but not limited to: the duration of the relationship, whether a sexual relationship exists, the degree of financial support, and your reputation and public aspects of your relationship. If you have engaged in a de facto relationship for at least two years, you are entitled to similar relief upon separation that you would be entitled to if you had chosen to marry.

In 2008 major changes were made with regard to the way the law treats de facto couples that subsequently separate. Now, de facto relationships fall under the purview of the federal law and are discussed in The Family Law Act of 1975. The 2008 amendment basically allowed for de facto couples to be entitled to nearly identical relief as married couples in terms of property settlement, maintenance, and financial agreements.

The bottom line is that the law awards some protection for de facto couples even though you and your partner chose not to get married. If you were party to a de facto relationship and have since separated, be sure to contact your lawyer and learn about the types of relief that are available to you.

What if my partner says we were not in a relationship?

The Court will consider the length of the relationship, your living arrangements, how you arranged your finances and property ownership, whether there was a sexual relationship, whether or not you had or cared for children and the way you presented your relationship in public.

My partner and I have never been married. What are my rights and obligations?

For relationships that break down after 1 March 2009, new laws apply under the Family Law Act.

The same legal principles that apply to financial settlements between parties to a marriage are now applied to settlements between de facto partners.

Superannuation can be split between de facto partners following their relationship breakdown. Spousal maintenance can also be ordered.

Cases between de facto partners pertaining to their children have been regulated by the Family Law Act since 1988.

Am I entitled to a property settlement?

You can make an application for a property settlement under the Family Law Act if any of the following apply:

  • your de facto relationship lasted for at least 2 years;
  • you have a child with your de facto partner; or
  • you have made a substantial contribution to the property or finances of your partner.

How do we settle our property?

The same laws about property apply whether or not you were married or in a de facto relationship. You can start negotiations about property as soon as the relationship has broken down.

In a de facto relationship, you must commence property or maintenance proceedings within two years of your separation.

Children of a de facto relationship

The laws relating to property settlement at the end of a de facto relationship have recently changed. For relationships that have broken down since 1 March 2009, the Family Court now deals with all of the legal aspects of the separation, including any:

Child Support Agreement,

Parenting Plan or

Parenting Order.

 

Child Support

Child Support can be sought via the Child Support Agency or a Child Support Agreement.

Parenting Orders. may be sought in the Local Court, the Federal Circuit Court or the Family Court. The principles that apply to the children of marriages also apply to the children of de facto relationships.

Divorce in australia property settlement

One of the most important, and perhaps the most difficult, issue facing couples who separate is the question of ‘who gets what?’ The Family Law Act provides for property settlements between couples in a de facto relationship. Most property settlements are dealt with by the Federal Circuit Court or the Family Court.

The laws relating to property settlement at the end of a de facto relationship have recently changed. For relationships that have broken down since 1 March 2009, the Court now deals with all of the legal aspects of the separation, including any parenting agreement, property settlement and maintenance. As a result, parties to relationships that have broken down after 1 March 2009 may have more extensive entitlements than they would have had under state law.

Depending on the length and dynamic of the relationship, as well as the way that the parties have arranged their finances, a property settlement can be quite simple or involve complex negotiations.

Both financial and non-financial contributions are taken into account when determining de facto property division. The new changes to de facto laws now allow for future needs and superannuation splitting arrangements to be considered as well. The Court will consider the financial and non-financial contributions made by each party and divide the property in a manner that is just and equitable.

Strict time limits apply to commencing property settlement proceedings in a Court. You must apply for a Court Order within two years from the date your de facto relationship ends. It is important that you seek proper legal advice as soon as possible.

The lawyers at Mathews Family Law & Mediation Specialists Melbourne understand the difficulties involved and the unique nature of individual relationships. We have extensive experience negotiating property settlements for couples who have a substantial asset pool, such as a major property/share portfolio or a family business. We understand both the emotional and the commercial implications of splitting assets. We are committed to ensuring a fair settlement is achieved as quickly as possible, we aim to reduce the time taken and therefore the cost to you.

Mathews Family Law is a law firm based in Melbourne. Please contact us on +61 3 9804 7991 to speak with a family lawyer from our law firm today. You can also send through your enquiry online now and we will contact you shortly.

Separation agreements

Separation agreements are a type of Binding Financial Agreement. A separation agreement is entered into in anticipation of, or at the conclusion of a de facto relationship. These agreements can provide for the division of the parties’ property and maintenance.

How to formalise a binding financial agreement

Binding Financial Agreements can be made between parties to a de facto (including sex couple) relationship. These agreements can be made before, during or after the de facto relationship.

Binding Financial Agreements between de facto partners

Parties to a de facto relationship can make binding financial agreements. A financial agreement can be made either before the relationship begins at any time during the relationship or on separation. The agreement can cover matters such as:

  • responsibility for expenses,
  • classification of property owned by the parties as either joint or individual property,
  • the categorisation of property acquired during the relationship as either joint or individual,
  • responsibility for debts and
  • the division of property and maintenance if the couple  separates.

If you have come to an agreement without legal advice, you should obtain advice before you sign anything. Mathews Family Law & Mediation Specialists can provide you with the advice needed to make an informed decision before you enter into a binding financial agreement. We can also assist by drafting the agreement for you to ensure that it covers all the legal requirements that you may not have thought of.

Mathews Family Law is a leading family law firm in Australia. Please contact us on +61 3 9804 7991 to speak with our family and divorce lawyers today. You can also send through your enquiry online now and we will contact you shortly.