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.
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:
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 email@example.com
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.
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:
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:
Contact one of our De Facto Lawyers on (08) 9468 3297 or email us at firstname.lastname@example.org 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 email@example.com 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