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De Facto Relationship in Australian Law

What is a de facto relationship? In the section 4AA of the Family Law Act 1975, you will find the definition of a de facto relationship. In de facto relationships a couple lives together on a genuine domestic basis. This couple can be of the same or opposite sex. Your relationship will not be […]

De Facto Relationship in Australian Law

De Facto Relationship in Australian Law

What is a de facto relationship?

In the section 4AA of the Family Law Act 1975, you will find the definition of a de facto relationship.

In de facto relationships a couple lives together on a genuine domestic basis. This couple can be of the same or opposite sex. Your relationship will not be considered de facto if you are married or the couple belongs to the same family. 

De facto relationship in Australian law:

The meaning of a de facto relationship is that a couple lives together just like married couples. This couple can be of same-sex or heterosexual. The only difference between married people and de facto couples is that de facto couples are not married. Australian law has given them complete rights similar to married couples. They can take their issues to the family court and the court will resolve their issues. 

How to register a de facto relationship in QLD?

If you are thinking of registering your de facto relationship you should go to your state’s registry of births, deaths, and marriages. You will get a certificate from them, that certificate is proof that you are in a de facto relationship. 

This certificate will generate your rights for property division. If you have this certificate you will not have two years of relationship before applying for property settlement.

The same procedure applies to QLD, but you should remember the following:

  • You must be 18 or above
  • You should not be married and you cannot have more than one registered de facto relationship. 
  • One of you should be living in Queensland
  • It is illegal to be in a relationship with siblings or half-siblings

What does the court consider in a de facto relationship?

The court has fixed some factors to know whether the couple is in or in were de facto relationship. Those factors are:

  • None of the couples is or were married
  • When did they start the relationship?
  • Was this relationship sexual?
  • Financial condition
  • Did they register their relationship?
  • Who owned the property?
  • What was their contribution to caring for the child?
  • What was the public reputation of their relationship?

After the breakdown of the relationship:

The de facto relations mostly end amicably. But sometimes the issue of division of property or children arises. After the breakdown of de facto relations, we have three ways to sort these issues. 

  • Make an agreement, so you don’t have to visit the court. 
  • Use an agreement given by the court
  • Apply an application to the court for orders. 

The courts may divide the property owned by both persons or separately. They may also split superannuation. 

The court considered all the properties owned by both parties. It does not make any difference whether the property was bought or sold before or after the relationship. The court makes orders according to the need and financial condition of a person.

How to make the application to the court?

You can resolve your property or child issues by applying to court. If you are in Western Australia then you can apply to the Family Court of Western Australia. If you are in any other state apply in the Family court or Federal Circuit Court. 

To apply in any court you should first meet the definition of a de facto relationship. You must be in a two years relationship or you should have a child. 

After your application is accepted then your case will be treated similarly to a married couple. 

What if your partner dies?

As mentioned above the only difference between de facto and married people is that married else they are the same. There are the same rules for them. If a de facto partner dies then:

  • The other person can challenge the will if he or she has any doubt. 
  • He or she can receive compensation entitlements according to the worker’s compensations law if the dead person were in the course of employment
  • The partner can also receive social security entitlements. 
  • If there is no will the partner will receive a part of the estate

Can I apply to the Court to have my de facto financial dispute determined?

Yes. Since 1 March 2009, parties to an eligible de facto relationship that has broken down can apply to the Court to have financial matters determined in the same way as married couples.

You must apply for de facto financial orders within two years of the breakdown of your relationship. After this time you need the Court’s permission to apply.

Before the Court can determine your financial dispute, you must satisfy the Court of all of the following:

  1. you were in a genuine de facto relationship with your former partner which has broken down
  2. you meet one of the following four gateway criteria
    1. That the period for the de facto relationship is at least 2 years
    2. That there is a child in the de facto relationship
    3. That the relationship is or was registered under a prescribed law of a State or Territory
    4. When assessing property or custodial claims in cases of a breakdown of a relationship, it is recognised that significant contributions were being made by one party and the failure to issue an order would result in a serious injustice
  3. you have a geographical connection to a participating jurisdiction
  4. your relationship broke down after 1 March 2009 (or after 1 July 2010 if you have a geographical connection to South Australia only); although you may be able to apply to the courts if your relationship broke down prior to the date applicable to your state.

You should obtain legal advice about whether your circumstances satisfy the criteria before filing an application.

Legal help for a de facto relationship in Australia:

To get your rights you should know the laws for de facto relationships. Aylward Game is here to help you with that. We can explain everything about property and child care to you. We have the most experienced lawyers who can help you in getting your right. We can assist you in mediation, division of assets, and spousal maintenance. We will guide you about all the legal issues. 

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Frequently asked questions:

People ask many questions about de facto relationships, we have shortlisted a few of them. 

What are the basic criteria of a de facto relationship?

If you want to be in a de facto relationship, you should be at least 18 years old. You should not be married, your relationship should be genuine and both people should live together. 

Are there different rules for same-sex de facto couples?

Not at all, under Australian law, all kinds of de facto couples are treated equally. Either it is about the child or the property. 

What is the time limit to apply for a property settlement?

You have got 2 years from the date of separation to apply for a property settlement. If you get late you can ask the court’s permission to apply but you will have to give a valid reason for your delay.

Are You In A De Facto Relationship?