The Situation Where a De Facto Relationship is Relevant

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21/01/2020

Parent Alienation

What is a de facto relationship?

A de facto relationship is defined in Section 4AA of the Family Law Act 1975 (Cth).  A person is in a de facto relationship with another person if:

  1. The parties are not legally married to each other; and
  2. The parties are not related by family; and
  3. Having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

The circumstances of a de facto relationship

The circumstances may include any of all of the following:

  1. The duration of the relationship;
  2. The nature and extent of the common residence;
  3. Whether a sexual relationship existed;
  4. The degree of financial dependence, and any arrangements for financial support, between them;
  5. The ownership, use and acquisition of their property;
  6. The degree of mutual commitment to a shared life;
  7. Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
  8. The care and support of children;
  9. The reputation and public aspects of the relationship.

No particular finding in relation to any of the above circumstances is regarded as necessary in deciding whether a de facto relationship existed.

A de facto relationship can exist even if one of the parties is legally married to someone else or in another de facto relationship.

How do de facto relationships differ from married couples in parenting and financial matters?

The Family Court and Federal Circuit Court consider issues relating to the children of de facto relationships in the same way as children of married couples.

Eligible de facto relationships can apply to the Courts to have financial matters determined in the same way as married couples.  For a de facto relationship you must meet one of the four gateway criteria:

  1. The parties were in a de facto relationship for at least 2 years;
  2. There is a child on the de facto relationship;
  3. The relationship is or was registered under a prescribed law of a State or Territory; or
  4. Significant contributions were made by one party and the failure to issue an Order would result in a serious injustice.

De facto financial proceedings must be commenced within two years of the date of separation, whereas married couples must commence proceedings within 12 months of the date of their Divorce Order.

If you are in a de facto relationship and need advice regarding separation, speak to a family lawyer at Cairns Divorce Lawyers today

The situation where a de facto relationship is relevant

In Australia, de facto relationships are legally recognized in various situations, particularly under family law, taxation, social security, and migration laws. Here are some key situations where being in a de facto relationship is relevant by law:

1. Family Law (Property & Spousal Maintenance Claims)

Under the Family Law Act 1975, de facto partners have the same rights as married couples when it comes to:

  • Property settlement after separation.
  • Spousal maintenance if one partner is financially dependent on the other.
  • Superannuation splitting in a financial separation.
    To claim these rights, the relationship must have lasted at least two years, or there must be a child involved, significant financial contributions, or evidence of hardship.

2. Wills & Estate Claims

  • If a de facto partner dies without a will, the surviving partner may have a claim on their estate under succession laws.
  • A de facto partner may also contest a will if they were financially dependent on the deceased.

3. Social Security & Centrelink Benefits

  • Centrelink considers de facto relationships when assessing eligibility for benefits like the Age Pension, Parenting Payment, or Family Tax Benefit.
  • Your partner’s income and assets may affect your payments.

4. Migration Law (Partner Visas)

  • To sponsor or be sponsored for a partner visa, the applicant must prove a de facto relationship of at least 12 months, unless they are registered in an Australian state that allows de facto relationship registration.

5. Workplace & Insurance Benefits

  • Many employers recognize de facto relationships for employee benefits such as superannuation, health insurance, and leave entitlements.

6. Criminal Law (Domestic Violence Protections)

  • De facto partners are protected under domestic violence laws in the same way as married couples, allowing them to seek apprehended domestic violence orders (ADVOs) or similar protections.

At Cairns Divorce Lawyers you will always speak to a Lawyer