Are you currently living with your partner in a relationship without the accompanying “ball and chain” of marriage? Are you in a committed relationship but maintain separate residences? Do you sleep at each other’s house each week but have not “officially” moved in together?
Under Australian Law, de facto couples have substantially the same rights and liabilities as married couples, with regard to property settlements during separations. This includes claims for spousal maintenance and superannuation “splits”.
Many couples ask the question “when do we legally become a de facto couple and when can my partner make a claim upon my assets”?
With the number of couples living together before marriage increasing from one in five in 1979 to almost four in five in 2012, it is now more important than ever to know the legal implications of living together in a de facto relationship.
So how do I know if I’m in a de-facto relationship?
A person is deemed to be in a de facto relationship with another person if they are not legally married to their partner but are in a relationship as a couple and living together on a “genuine domestic basis”. This relationship includes a relationship between parties of the same sex.
It is important to note that whether the couple lives together is only one factor that the Court must consider in determining whether a de facto relationship existed.
There are a number of factors that the Court will consider when determining whether (and for how long) a de facto relationship existed, including:
- the duration of the relationship
- the nature and extent of the couple’s common residence
- whether a sexual relationship existed
- the degree of financial dependence or interdependence between the couple
- the ownership, use and acquisition of property
- the degree of mutual commitment to a shared life
- the care and support of children
- the reputation and public aspects of the relationship
How do I make a claim, following a de-facto separation?
You have a time limit of two years from the date your relationship ceased to make a property claim against a former de facto partner.
De facto couples who separate come under the auspices of the Family Law Act, which requires the person making the application to prove that a de facto relationship existed for a period of at least two years and that separation occurred after 1 March 2009.
There are some instances where the Court will consider a de facto relationship to exist when the couple have been together less than two years but where:
- the couple have had a child together; or
- where one person has made substantial contributions to the relationship (financial or non-financial); or
- where the couple has registered their relationship under the relevant state or territory law. This is considered to be automatic and conclusive evidence of the existence of the relationship, regardless of the length of the relationship.
How can I protect my assets and finances?
Couples who want financial security can enter into a Binding Financial Agreement (BFAs) at any time during their relationship.
Binding Financial Agreements are similar to pre-nuptial agreements, in that a couple can use them to set out how their property and other assets would be divided if they were to separate. Couples can also use a Binding Financial Agreement to deal with issues such as spousal maintenance, e.g., exempting each other from making a claim for maintenance, or specifying maintenance terms in the event of a separation.
Some de facto couples choose to make a Binding Financial Agreement when they are in the process of separating. In these circumstances it can be a useful way of formalising the couple’s agreed settlement of their property and assets, along with any spousal maintenance.
How do I enter a Binding Financial Agreement?
For a BFA to be valid it requires both parties to have independent legal advice. If you are in any way unsure of the potential impact your relationship could have on your financial situation, we recommend that you seek appropriate legal advice. Southern Waters Legal’s Family & Relationship Law team is able to offer discrete and practical advice to suit your specific needs and circumstances.
Call Leona Bennett today on (02) 9523 5535, if you would like to clarify your situation.