De-facto Relationships

Generally, most people believe that there is only one kind of legally recognised relationship: marriage. The reality, however, is that the law recognises another distinct kind of relationship that is separate from that of a married couple.

If you live with your partner as a couple, the law will treat this as a ‘de-facto relationship’. As is clear from the name, de-facto relationships are not, strictly speaking, the same as marriage. However, notwithstanding the difference in the name, a couple involved in a de-facto relationship will be granted exactly the same rights and responsibilities that a married couple enjoy.

Most people will not consider their rights as someone in a de-facto relationship until the point in time when the sustainability of their relationship comes into question. Many people believe that, because they are not married to their partner, they will not be entitled to the property that they have shared, or any help in respect of children that they have had with their partner. This isn’t the case. Where a couple in a de-facto relationship feel that they need to bring their partnership to an end, both will be entitled to a proportion of the property that they shared together under the Family Law Act by way of a ‘de-facto property settlement’, which is normally administered by the courts. However, in order for this to be the case, it must be proven that they were, in fact, in a de-facto relationship.

Where a couple are able to part on fair terms, there is unlikely to be any dispute on the existence of a de-facto relationship. However it may be that one party to the relationship disputes its existence. If this is the case, then the courts will consider, amongst other things:

• the length of time that the relationship lasted for;
• the living arrangements between the parties;
• the ways that a couple organised their finances;
• if a couple owned property together;
• whether the relationship bore any children; and,
• the way that the relationship was presented.

In most cases, the courts will only recognise a de-facto relationship where a couple has been in a relationship for no less than two years. However, it may be that a relationship has existed for less than two years but a couple has had a child together or, there has been substantial contributions made to the property or finances shared by a couple. If any of these conditions are met, the courts will recognise the existence of a de-facto relationship and will be able to arrange an appropriate division of property.

In the first instance, an application for a de-facto property settlement must be raised with the Family Court within two years of a relationship being brought to an end. De-facto property settlements are designed to allow for the ‘fair and just’ division of property between a former couple. The court, in deciding on the allocation of property, will consider a number of things:

• What property each party to the relationship owned before they met their former partner; and
• Contributions made by each party to the relationship over the course of its existence e.g. wages, work done to property, gifts as well as care given to family members or children.

After the court has considered these things, it will make an order giving effect to its decision. It should be pointed out that the court may decide that property jointly owned by a former couple is sold and divided in a certain way, or that the right to certain pieces of property is given to one person. Much will depend on the circumstances.

It is not uncommon for de-facto relationships to have involved children. It is hoped that a former couple will be able to come to some kind of agreement without court involvement. However, if this is not the case, then the court can be asked to make its own decision on arrangements for caring for children. This can be brought to the courts attention from the moment that a relationship is ended – it is not governed by the same time limits as applies to de-facto property settlements.

Being in a relationship can be a very happy period for people. However, where a relationship is brought to an end it can be difficult for parties to agree. Many are very emotional and unable to think objectively about how they will go about organising their separate lives. While the courts encourage couples to make their own arrangements where possible, in some cases this may not be possible. In those situations, it is important to have the advice and support of a specialist family lawyer. You will need to understand how the law applies to your own particular circumstances, and be helped to navigate court procedure.