De Facto Relationship Lawyers

A de facto relationship is one in which two people who are not married and not related are living together as a couple on a domestic basis. The two people can be of the same sex or of the opposite sex. There are certain factors that go towards proving that the nature of the relationship is that of a de facto partnership. These include the duration of the relationship, whether a sexual relationship exists, the degree of financial dependence, the level of mutual commitment to a shared life and also the reputation and public aspects of that relationship.

The law concerning de facto couples has undergone a rapid transformation in recent years. If you are in a de facto relationship, it can be confusing to work out exactly what your rights and obligations are. At Berryman Partners we provide friendly, easy to understand advice to help you understand your situation.

Parenting issues in de facto relationships

Issues surrounding the children of a de facto relationship are dealt with in the same way as children of a marriage. De facto partners have the option of negotiating a Parenting Plan or obtaining consent orders to formalise their arrangements. If an agreement cannot be reached, either party also has the option of applying to the Court for parenting orders. Child support can also be sought by a parent of a child from a de facto relationship.

Property issues in de facto relationships

When a de facto relationship breaks down, the parties have similar options available to them in terms of how they deal with their property as any married couple.

If they choose to negotiate a property settlement, they can formalise their arrangement by entering into a financial agreement. This is usually referred to as a Separation Agreement.

These are used to divide the property of the parties at the conclusion of the relationship. They provide a way to formalise any arrangements between the parties.

It is of course also possible for de facto couples to obtain consent orders from the Court to formalise any agreement they make in terms of a property settlement

If, on the other hand, it is not possible to come to an agreement concerning the division of the property of the relationship, either of the parties can seek financial settlement orders from the Court.

A property settlement conducted by the Court in the case of de facto relationships follows the same steps as a property settlement for a married couple. That is, the Court divides the asset pool according to the contributions of each party to the acquisition of the assets. There are, however, some important differences. For example, it is rare that the Court will take the future needs of each party to a de facto relationship into account when performing the property settlement. Also, less regard may be given to non-financial contributions in the case of de facto couples.

To obtain orders from the Court it will be necessary to prove one of the following things:

  1. That the total period of the relationship was at least two years, or
  2. That there is a child of the relationship, or
  3. That serious injustice would be caused to one of the partners if the orders were not obtained due to the contributions they made to the relationship, or
  4. That the relationship has been registered in a State or Territory that allows for the registration of de facto relationships.

A party to a de facto relationship that has broken down has two years in which to make a property claim with the Court. This is unlike a divorce after which the parties have only 12 months.

De facto couples can also enter into financial agreements during the course of their relationship. These are usually referred to as Cohabitation Agreements. A Cohabitation Agreement can be used to classify the property of the relationship as being owned either jointly or individually. They can also be used to set out responsibilities within the relationship and domestic expenses amongst the parties.

Spousal maintenance in de facto relationships

Just like the parties to a marriage breakdown, a party to a de facto relationship that has broken down has a responsibility to financially assist their former partner if that partner cannot adequately support themselves. It is possible for a party who cannot meet their own reasonable expenses to seek an order that their former partner make spousal maintenance payments.

The Court will not automatically make an order for spousal maintenance. Instead, the Court will balance the needs of the applicant against the capacity of the other party to pay. Factors which will be considered by the Court include the age and health of the parties, their respective future earning capacities and their assets and financial resources.
The party seeking maintenance orders from the Court will have to show that the relationship was a de facto relationship and prove one of the following criteria:

  1. That the total period of the relationship was at least two years, or
  2. That there is a child of the relationships, or
  3. That serious injustice would be caused to that party if the orders were not obtained due to the contributions they made to the relationship, or
  4. That the relationship has been registered in a State or Territory that allows for the registration of de facto relationships.

A party seeking spousal maintenance orders has two years from the breakdown of the relationship to make their application to the Court.

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