De Facto Separation

family lawyers

It is becoming more common for couples to remain in long term relationships without marrying, whilst still entering into what are considered by many, to be traditional marital transactions such as purchasing property or having children together. With de facto relationships on the rise in Australia, there is increasing confusion over the rights and entitlements of a de facto during a separation. Unlike other countries, if you are in a de facto relationship in Australia, you generally have the same rights as a married couple once you separate. Our Cairns family lawyers can help you understand what these are.  

What is a de facto relationship? 

Under the Family Law Act, a person is in a de facto relationship with another person if:

  • the couple are not legally married to each other; and
  • the couple are not related by family; and
  • having regard to all the circumstances of their relationship, they have a relationship as a couple who are living together on a “genuine domestic basis”

The Family Law Court may consider other factors when determining if a couple is in a de facto relationship, such as:

  • the length of time the couple has been together (including any periods of separation);
  • whether or not there was the existence of a sexual relationship;
  • whether or not the couple were residing together;
  • the financial dependency of the parties; and
  • how the relationship was perceived by the family and friends of the couple.

What should I do if I have separated from my de facto partner?

If you have recently ended, or are thinking of ending a de facto relationship, you should speak to a family lawyer as early as possible. As with a property settlement after marriage, there are various factors that will determine the outcome, so getting the right advice from a family law expert can help you understand what your entitlements and obligations are. 

If you are unsure whether you are in a de facto relationship, speak to a family lawyer at Cairns Divorce Lawyers today. 


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What rights do de facto partners have?

In de facto relationships, the rights of de facto partners have traditionally been more limited than married couples, up until 2009. If you are a de facto who has separated, you can apply for property settlement or spousal maintenance under the Family Law Act. However, you must file for an application in the court within two years of the date of separation.

Our lawyers will be able to advise as to whether you are entitled to savings, real estate, investments, business assets, personal property such as cars and superannuation.

When can a property settlement order be made for a de facto relationship?

A de facto property settlement order can be made if:

  • The de facto relationship has been registered.
  • You have lived together for at least 2 years.
  • You have had a child together.
  • You have made substantial contributions and there would be injustice if no property settlement was made.

If you are unsure whether you are in a de facto relationship, speak to a family lawyer at Cairns Divorce Lawyers today.

What happens to pets during separation?

Whilst animals are not regarded as assets (unless they are highly valued racehorses or similar), there can be times when one person has contributed more financially to the welfare of the animal. In circumstances such as these, a settlement could be adjusted.

The care for animals such as cats and dogs who were jointly part of the de facto arrangement prior to the breakup, are usually settled outside of court. There are exceptions such as when domestic violence has been a factor in the separation.

Arrangements can be formalised via a consent order but the relationship of the animal, lifestyle, who purchased the pet, who registered it and who the main caregiver is, should also be discussed.

If you have concerns about pet ownership after separation, our team of legal experts can assist.  

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