Legal Rights and Obligations in De Facto Relationships

couple

If you are in a de facto relationship, or you have been in a relationship that has broken down, you may be wondering about your legal rights and obligations. How do you prove the validity of your relationship? What entitlements do you have as a de facto partner? And what can you do to ensure that you are treated fairly by the legal system? Find out more about de facto relationships.

 

The definition of a de facto relationship is a partnership that isn’t a marriage but that has many of the same characteristics. It can take place between opposite or same-sex partners, and involves two people living together as a couple on a genuine domestic basis.

A ‘genuine domestic basis’ is a legal term that is used to describe the arrangements of a de facto couple. In general, your status as a couple will only matter if there is ever a legal dispute. In this situation, the court will look at a number of factors to determine if you were in a de facto relationship. When deciding if two people living together on a genuine domestic basis, the court will consider:

  • Any shared finances
  • Children and caring arrangements
  • Time spent living together
  • Sexual intimacy
  • Commitment to each other
  • How other people perceived the relationship.

Your Rights in a De Facto Relationship

If your relationship breaks down and you weren’t married, you may find yourself in a situation when you need to prove that you were in a real relationship in order to qualify for the same legal rights as married people.

Property

In general, de facto couples have the same rights under Australian family law as married couples. This means that, after a breakup, you can make a claim on the property of the relationship or your ex-partner’s property.

It doesn’t matter if your ex-partner owned the property independently, or if they acquired the property prior to the relationship. As a de facto partner, you will have rights to it if you meet certain eligibility criteria.

You have full rights towards property if you have lived with your partner on a genuine domestic basis for at least two years, or if you have a child together.

If you do not meet this criteria, the court may consider other factors, such as any financial contributions you made to the relationship, or if you gave up work to care for your children and are therefore at a financial disadvantage.

Migration

If you are not an Australian citizen, you may be applying for a migration visa. In this situation, you need to be able to demonstrate that you have been in a de facto relationship for at least one year. If there is a child of the relationship, this requirement doesn’t apply.

Children

Having a child automatically grants you de facto status – there is to requirement to live together on a genuine domestic basis. Your relationship will be legally recognised if you and your ex-partner share a child.

Superannuation

A superannuation fund can exercise discretion when deciding whether to pay entitlements to a de facto partner. It can be beneficial if your partner makes a binding death nomination in your favour.

Deceased Estates

If your de facto partner, or former de facto partner, dies intestate (or without a will), you may want to make a claim on their property and assets. This can be difficult if they did not express their wishes that you be a beneficiary. You will need to prove that you have had a de facto relationship for at least two years.

If your ex-partner did leave a will but you have not been provided for, you may still be able to make a claim. A court will consider your ability to support yourself financially, as well as other factors such as your financial contribution to the relationship. You will need to be able to prove your de facto status.

Registering a De Facto Relationship

If you are in a de facto relationship, it is a good idea to register your relationship with the Registry of Births Deaths and Marriages. Doing so makes it easier to prove that your relationship exists and will make the process of claiming your rights faster and less challenging if the relationship does break down.

Do I need to work with a lawyer?

If you are, or have been, in a de facto relationship and you are worried about your legal rights, you can speak with a lawyer to find out where you stand and what you can do to improve your situation.

Some of the things that an experienced family lawyer can assist you with include:

  • Advising you on your rights and obligations if your relationship has broken down
  • Guiding you through the relationship counselling process
  • Helping you make a financial agreement
  • Negotiating parenting or custody arrangements
  • Obtaining parenting orders from the court
  • Preparing and arguing your case in court