Perth Defacto Relationship Lawyers

De Facto Relationships and Your Entitlements

The Family Law Act defines what constitutes a De Facto relationship. The Family Court has power to make orders in respect to property of the parties as well as children if it is satisfied that the parties have lived in a de facto relationship that is marriage like. Chief Justice Thackray discussed the threshold test in the case of Truman and Clifton 2010 FCWA 91 and confirms that there is a significant difference between living with someone and living in a relationship that is marriage like. Living together does not necessarily mean one is in a de facto relationship.

The current Family law Act  governs both same sex or opposite sex relationships around Australia. This Law Act applies to couples whether same sex or otherwise so long as they were married. In WA the law that applies in respect to de facto relationships is the Family Court Act 1997 which is the state law only, it does not apply Australia wide. The two acts are similar, but have some minor differences. In the end, being a spouse is the same as being married in most cases.

Are you in a De facto relationship?

It a common misconception among some members of the community that living with someone automatically means you are in a de facto relationship. Also, calling someone your partner does not necessarily automatically mean you are in a de facto relationship. Whether a de facto relationship exists is a question of facts. It is also one of the most important questions to ask when you are living together with someone because their rights to property settlement and the right to apply to the Family Court for parenting or property settlement or division of assets depends on whether they are in a de facto relationship on not. You are not considered a de facto  unless you have lived a marriage like relationship. Therefore, long-term platonic roommates are not spouses or de facto relationships. Conversely, long-term love interests may not be spouses in certain situations unless they are or they lived in a marriage like relationship.

What if I am in a De Facto Relationship?

ABMS LAWYERS represent and defend the rights of de facto couples all over Perth, Western Australia, and other parts of Australia.  If you are found to be in a de facto relationship, you have the same rights and obligations as married couples. This includes:

• Right to property settlement
• Right to Child Support and Maintenance
• Right to Spousal Support and Maintenance
• Right to parenting Orders and Contact

What Do You Do If You Don’t Want Your De Facto Partner to Have Rights to Your Property?

You can enter into a Financial Agreements to try and preserve your rights to your property on or before commencing the relationship with them. Sometimes, you can do it whilst you are living together, but it can be a bit difficult, especially if you have been living with them for a while. The Financial Agreement will protect your rights should your relationship fall apart. Our Family Lawyers will draft solid agreements that will withstand Court challenges as far as possible.

Learn more about your rights and get experienced legal advice from an experienced separation and de facto relationship family law lawyer to make sure your rights are set out and you have a peace of mind for the future. Contact one of our Family Law Lawyers on (08) 9468 3297 or via email at office@abmslawyers.com.au

Marriage vs De Facto Partner Relationships – Legal Differences Explained

Marriage allows people to access a complete package of rights simply by showing their marriage certificate or ticking a box and is based on their mutual promises to one another rather than proving their relationship meets interdependency criteria. Unlike de facto relationships, marriage is recognised nationally and internationally although this is changing in line with the times.

Differences under the law

The laws regarding de facto couples differ between states and the commonwealth at the moment. In  Perth WA, de facto couples bring proceedings in the Family Court of WA under the Family Court Act 1997. The provisions are like those under the Family Law Act 1975 (Cth) but there are minor differences. The Family Law Act deals with married couples and de facto parties and children’s issues in other states and territories except WA.

De facto relationships require parties to provide evidence about their living and sexual relationship which is different in a heterosexual marriage or civil union marriage.

Under Family Law, there is a requirement of a minimum of two years before being recognised as a de facto relationship (unless you have a child together, have registered your relationship, or have made significant contributions to the relationship). Where married couples use IVF, both spouses are automatically legal parents. But for de facto couples using reproductive technologies, their child’s parentage depends on whether a de facto relationship is proven to exist at law.

Couples who are or were married must file for property and/or spousal maintenance proceedings in the Family Court within one year of their Divorce but have the option to agree to an extension of time in which to file. No such provision exists for de facto couples, they must file proceedings within two years after their separation.

In many states, a new marriage nullifies an existing will, unless that will was quite specifically worded. This is not the case when you enter a new de facto relationship. In the latter situation, if you die before making a new will, a court might need to decide how your assets are allocated (with costs borne by your estate). Divorce also nullifies a will.

For Centrelink purposes, you are a de facto couple from the moment you start living together. For Migration law, it is after 12 months of cohabiting unless you have a child together or de facto relationships are illegal in your country of origin.

De facto relationships require significant proof, which means partners may have to provide evidence about their living and childcare arrangements, sexual relationship, finances, ownership of property, commitment to a shared life and how they present as a couple in public. These criteria can be absent from a heterosexual marriage, but it is still deemed a marriage.

What exactly is meant by a marriage like relationship?

There are various factors the court would consider in determining whether you lived in a marriage like relationship. Living together doesn’t mean physically living together full-time part time or at all as people’s relationship needs are very different. It is a common misconception amongst members of the community that two people need to be physically living together on a full-time basis for two years before they are deemed to be in a facto relationship. People are deemed to be in a de facto relationship if they live together in a marriage like relationship and are not legally married – Section 13A(1)of the Interpretation Act 1984 (Western Australia).

People are deemed to be living in a marriage like relationship or de facto relationship if the following factors exist. However, these factors are only indicators and are not exclusive. Under our Family Law Act or Family Court Act, you can be considered as being in a de facto relationship if the following factors are present:

• Duration of the relationship – the longer the relationship, the more likely it is to be classed as de facto. A relationship of a minimum of two years is likely to be classed as de facto, however that also depends on whether other factors stated below exist:
• Sharing a common residence – this means people living together in the truest sense of living together. This is a situation where neither one of you pays rent or board to the other. The address or common address is the same for example both parties and must be listed on documents such as tax returns, electoral roll, licences etc.
• Having frequent sexual relationship – two people have a sexual relationship which is mutually exclusive. It is not necessarily the frequency of the intimacy or the sexual relationship itself though.
• Financial interdependency or intermingling of finances – sharing bank accounts, joint bank accounts, joint loans, owning property in joint names, private health insurance in joint names, identifying and listing yourselves as a couple on documents for example tax returns perhaps receiving benefits as well.
• Ownership or acquisition of property and treating property of the party as equal – for example you live together in the same property, you both make contributions towards the home and liabilities, such as the mortgage, and you both live in the house regardless of whether it is owned by one of you or by both of you. It could also be that you have intentions to own property together or you have discussions about doing so in the future, you live together in the same property and you both make payments towards a home loan, and/or you make repayments on the home you are both living in regardless of whether this home is owned by one of you.
• You purchased furniture and other items of personal use together.
• Your commitment to a shared life together – like sharing meals together and regularly communicating with each other in whatever mode of communication you deem necessary in your relationship.
• You have conversations of being a couple and you assist with the care of children or each other’s children and you live in the same house regularly or you regularly spend time together however that is classed.
• The social aspects of your relationship – it is known, especially by those closest to you, that you are in a marriage like relationship or you are socialising together, you go out for outings together etc.
• You care for the other person’s children – this could mean you financially support each other and the other persons child or children – you register your relationship, you are involved in the day-to-day activities of the other person like taking care of children, taking them to school appointment, sports and extracurricular activity.
• Your relationship in the public eye and family and friends know you as a couple and you are invited to attend events together, you are photographed at events together and conduct yourself as a couple.
• You refer to one another as partners, you are named in each other’s wills perhaps and you are listed as each other’s binding death nomination in your superannuation policies.
• Care and support of children – you have children together or you care for the other person’s child or children and you treat them as children of a relationship and you financially support the other person’s children.

How can I tell if I am in a De Facto relationship?

The de facto relationship threshold test is whether parties are living in a de facto relationship that is marriage like – Truman and Clifton 2010] FCWA 91. This case sets out the threshold test of what it means to be in a de facto relationship and the factors the Court will look at to determine whether parties were living in a de facto relationship or not. In this case, Chief Justice Thackray confirmed that there is a significant difference between living with someone and living in a de facto relationship that is marriage like. In fact, two people can be deemed to be in a de facto relationship if they live together in a marriage like relationship and are not legally married. Under the Laws of Australia, you can be married to someone but also be in a de facto relationship at the same time or you can be in multiple de facto relationships at the same time with or without realising it. However it is the common intention of the parties as to what their relationship is to be like and to involve. It is this mutual understanding as to their respective roles and responsibilities that primarily determines the nature of that relationship. The intention may be expressed, or it may be implied from the circumstances surrounding the relationship. Below are some indicators:

• You have lived together in a marriage-like relationship for about two years.
• It has not been more than two years since you separated .
• One or both of you are resident in WA when an application is made.
• At least 1/3 of your relationship was in WA or the person instituting proceedings made substantial financial, non-financial or parenting/homemaker contributions; and
• Your De Facto relationship lasted at least two years or there is a child of your De Facto relationship who is under 18 years of age and it will be a serious injustice to the person caring for or the person responsible for the child if an order was not made or one  partner made substantial financial contributions of a non-financial or parenting/home making contributions and it would be a serious injustice to that person if an order was not made.

Contact one of our De Facto Lawyers on (08) 9468 3297 or email us at office@abmslawyers.com.au if you would like to find out more about how De Facto relationships work and what you and your partner are entitled to if you decide to separate.

If you plan to move in together with someone, we recommend you negotiate a financial agreement immediately, especially if you have assets you want to protect. However, be aware that financial agreements may be challenged where necessary. We will explain in what circumstances that can happen and how best to try and protect yourself via financial agreement through the preparation of a sound financial agreement. The financial agreement is basically a contract that protects your rights should your relationship dissolve or fall apart. Our Family Lawyers at ABMS Lawyers prepare solid agreements that can withstand court challenges. Contact one of our Family Lawyers for assistance today to find out more information on how that can be achieved.

If you would like specific advice as to whether or not you are in a de facto relationship and what you and your partner are each entitled to if you separate and how you can legitimately protect your assets before or after separation, you can contact one of our Family Lawyers. You can also contact us to institute proceedings or to find out what each one of you will be entitled to following the breakdown of your relationship on (08) 9468 3297 or email us at office@abmslawyers.com.au for a confidential chat.

Other Perth Family Law Services That we Offer

Asset Division & Financial Separatioin|Binding Financial Agreements|Child Support And Child Maintenance
|De Facto Relationships|Divorce & Separation|Contraventions and Breaches of Court Orders and Enforcements|Family Violence Restraining Orders (FVROs) & Violence Restraining Orders|Form 11 Consent Orders|Mediation|Form 11 Consent Orders|Property Settlement