Just because a couple is living together it does not automatically mean they are in ade facto relationship. There are many different factors in determining whether twopeople are living in a de facto relationship, such as whether they share bankaccounts,are in a sexual relationship, and whether they are known as a couple tofamily and friends.If you are a couple who chooses to move in together with the intention oflivingtogether on a genuine domestic basis, then you should be well acquainted with whatyour rights and responsibilities are under de facto relationship laws.
What is a de facto relationship?
Contrary to common opinion, there is no set time period that a couple needs to beliving together before they can be considered to be in a de facto relationship.However, to be recognised as a‘de facto couple’ and have the same legal rights as a married couple for property settlement, theFamily Law Act generally requires acouple to have been living together for at least two years OR have at least one childfrom the relationship OR have made contributions to each other’s assets.
There is no one size fits all checklist of factors to prove that a couple is living in a defacto relationship, rather there are factors that should be taken into consideration when assessing whether a couple are in a de facto relationship. These include:
- Are the couple living together and if so, for how long have they been living together?
- Whether the couple has a sexual/intimate relationship.
- Whether they share joint bank accounts or own property together.
- Whether they share living costs, such as utility bills.
- Whether their family and friends know them to be a couple.
- Whether they share any children.
- Whether they are mutually committed to a shared life.
How do I protect my assets if I’m in a de facto relationship?
One way to protect your assets is through a Binding Financial Agreement (sometimes colloquiall yreferred to as a pre-nup). A Binding Financial Agreementsets out the assets each party has at the beginning of the relationship and how these assets will be divided if they separate. A Binding Financial Agreementcan be particularly important in circumstances where one party has significantly greater assets than their partner.
If a de facto couple decide not to properly draw a Binding Financial Agreement, they should at the very minimum agree to keep all their finances separate.
This should include:
- Keeping finances and bank accounts separate.
- Not acquiring property jointly
- Each party remaining responsible for their own debts, making their own financial decisions and spending their money as they wish, with no accountability to the other party
- Not jointly planning finances
for the couple’s future including there not being any evidence of an intention to provide for the other party in a Will, as a beneficiary in superannuation funds or in life insurance policies.
- The party that does not own the home that the couple live in contributing rent
or board to cover normal living expenses as opposed to contributing to the improvement or maintenance of the property, to its purchase or home loan repayments .
If you want to ensure that your assets are protected in the event that your de facto
relationship breaks down, we recommend you seek legal advice from a very experienced family lawyer
or Accredited Specialist in Family Law
How does the law treat a de facto relationship?
The Family Law Act provides that parties in a de facto relationship for more than two
years, can make an application to the court for orders to be made about how their
assets and liabilities should be divided once the relationship has broken down.
There are some exceptions to the two -year minimum period, where:
- the de facto couple share a child;
- thei r relationship has been registered; and
- one party has made substantial contributions to the other party ’s assets;
What are my rights if my de facto relationship ends?
The Family Law Act applies to de facto couples who separate and seek financial and other orders. The party making the application must prove that a de facto relationship existed for a period of at least two years and that separation occurredafter 1 March 2009.
A party to a de facto relationship can only ask a court to make an order aboutfinancial matters after the breakdown of a de facto relationship
Financial matters include:
- property settlements
- spousal maintenance matters
- superannuation splits
There is a time limit of two years from the date of separation to make a property claim.
De facto couples generally have the same legal rights as a married couple under the Family Law Act.There is no one size fits all checklist of factors to prove that a coupl eis living in a de facto relationship, rather various factors are taken into consideration when assessing whether a couple are in a de facto relationship.
If you would like to protect your assets in the event your relationship breaks down and prefer to keep the Family Court out of the division of your property and assets ifyou separate, you may wish to consider entering into a Binding Financial Agreement,especially where one party has significantly greater assets than their partner.
If you or someone you know wants more information or needs help or advice, please contact us on 08 8443 4888 or email [email protected].