A de facto relationship is one in which a couple, either of the opposite sex or same-sex, lives together on a genuine domestic basis. However, it is important to note that if such a couple decides to get married, they will lose their de facto status. In Australia, de facto couples are governed under the Family Law Act (1975). This Act governs such couples in all parts of Australia, except for Western Australia.
Legal Definition of a De Facto Relationship
Determining whether a couple can be designated a de facto couple is not a straightforward task. Unlike marriage, there is no legal document that necessarily needs to be signed. Due to the fact that such a categorization is not straightforward, the Courts in Australia consider the following factors when making such a determination. One is how long the couple has been together (the longer the relationship, the better the case for a de facto status).
Another is whether the relationship is sexual in nature. Yet another factor is financial dependency (the more co-mingled the couple’s finances are, the better the case for a de facto status). The Court will also look at whether children are involved (having children with your partner goes a long way for obtaining de fact status). Overall, it is important to remember that there is no singular definition for a de facto relationship. Each person’s intimate relationship will be different, hence the law has to analyse each situation on a case-by-case basis.
Breakdown of a De Facto Relationship
In Australia, there are three ways to divide property in the event of a breakdown of a de facto relationship. The first is by an agreement between the parties themselves without the need for a court order. This agreement is usually written up by the parties without legal help and is, therefore, a more intimate agreement.
The second is through an agreement formalized by the Court through an application for a consent order. A consent order is also an order that is drafted by the parties, however, it does not necessarily need to be. It can also be drafted by the solicitors for the parties. It is important to note that this order needs to eventually be put between a Court for ratification. Once the consent order gets Court approval, the agreement is legally binding, and the parties must abide by the terms and conditions to whatever extent reasonably possible.
The third way is to apply to the court itself for an order. The Court will look at your situation, analyse it from a neutral, fair, and equitable perspective, and then make an order to the division of any property that you own together or separately. The Court sometimes decides to make an order for the split of a superannuation (an organisational pension program created by a company for the benefit of its employees). Overall, superannuation can be a very complex topic, hence you should get separate legal advice in regards to these kinds of finances, even when dealing with a divorce or separation.
A more common order from the Court involves the payment of spousal maintenance from one spouse to another (usually, but not always, from the male to the female). To make the determination of the specific amounts, the Court looks at something called the couple’s ‘net asset pool’. Essentially, this includes anything acquired before, during, or after the separation. It does not matter whether the parties had owned property jointly or individually. It is also important to remember that the court will examine both types of contributions, meaning both financial and non-financial. The court also looks at the parties’ future needs.
If you are in Western Australia, the process is slightly different. If you would like to resolve the breakdown of a de facto relationship, the proper recourse would be to apply to the Family Court of Western Australia. This court will resolve issues regarding both property, as well as issues around children.
Parenting and Custody in a De Facto Relationship
When there is a breakdown of a de facto relationship, arrangements for children are determined in one of two ways; binding agreements made by the parents themselves, or in accordance with the Family Law Act (1975). Under the Act, the principal action that is taken is called a ‘parenting order’. In deciding whether to make a parenting order, in relation to one child or for two or more children, the Court must take into consideration the best interests of the child. This is a concept that is seen in many common law countries, including, New Zealand, Canada, and the United Kingdom.
Specifically, a parenting order made under the Family Law Act deals with one or more of the following matters.
- The person or persons whom the child will principally live with. If for example, the child lives with the mother, then the father will be the party requesting access visits with the child.
- The amount of time a child is to spend with each party individually.
- The allocation of parental responsibility for the child. The responsibility burdened on each person will essentially be determined in accordance with the amount of time the child spends with such person.
- The communication the child is to have with one parent if any. In situations where one of the parties has been determined to be a detriment to the well-being of the child, such a person may lose most rights to see or speak with their child.
- The overall maintenance of the child.
In the Australian legal system, the general rights of the mother, father (or stepmother/stepfather), and child are similar whether in a de facto relationship or not. However, there are some important differences which have been outlined above. It is important to take these differences into account when making an application under the Family Law Act.
To learn more about your rights and obligations in a de facto relationship, contact us today to speak with a lawyer.