Common misconceptions about de facto relationships and the things you should be aware of before entering a committed relationship
There are many misconceptions surrounding de facto relationships and a large portion of individuals and couples are not aware of the relevant legal implications and obligations. After handling countless de facto cases in which parties were simply unaware of the legal realities, we’ve summarised what a de facto relationship means in legal terms, and how that legal status will come into play during a relationship breakdown.
Most people believe that family law applies only to legally married partnerships when in reality de facto couples face almost identical legal rights and responsibilities as their married counterparts. In the case of property settlement, agreements regarding property matters arising from the breakdown of a de facto relationship can be negotiated and recorded. Separated de facto parties can also make an application to the Family Law Courts for property adjustment orders after a de facto relationship has ended.
The legal definition
Legally, a de facto relationship exists when 1) you are not legally married, 2) you are not related and 3) there is a relationship where you are living together on what is considered a ‘genuine domestic basis’. The genuineness of your domestic relationship is determined by reference to numerous factors, including:
● the relationship duration
● whether you lived together
● whether the relationship was sexual in nature
● the degree in which finances were shared
● ownership of any shared property
● the existence of a mutual commitment
● the shared care and support of children.
A court will consider the individual and unique circumstances of a relationship in coming to a finding, and your relationship may be found to be de facto even if you don’t meet all of the above-listed criteria. For example, while living arrangements are a major factor in determining a relationship status, there have been instances in which couples who lived apart, perhaps due to work commitments, were still found to be in a de facto relationship. There have also been other cases where a de facto relationship was found by the court to exist whilst a person was married to another person.
Separated de facto parties can also seek, and be liable for, maintenance orders if a party is in need of maintenance and the other party has the capacity to meet such obligations. With married couples, this is referred to as ‘spousal maintenance’. The concept of spousal maintenance will be covered in-depth within our June blog post (keep an eye out!).
When children are involved
All children are protected under the Family Law Act, regardless of the nature of their parent’s relationship. The Act outlines parental responsibilities and applies to children of a marital or de facto relationship.
Other things to note
The de facto status of a same-sex relationship is defined using the same legal criteria as that of heterosexual couples. Same-sex couples defined by the court as de facto are provided with the same legal rights and have the same legal rights and obligations as same-sex de facto couples.
As mentioned above, an individual can be in several de facto relationships simultaneously and a married individual can be found to also be within a de facto relationship with someone other than their marital spouse.
Protecting yourself before or during a de facto relationship
Many know about ‘prenup’ agreements and how they can protect people entering a marriage.
Those entering a de facto relationship can also enter into similar agreements regarding how property will be dealt with, among other things, after the breakdown of a de facto relationship. Other such agreements can be made during a de facto relationship, and can be used after a de facto relationship has ended to record a property settlement and deal with maintenance. These agreements are known as Binding Financial Agreements.
Need help navigating the breakdown of a de facto relationship? Shannon Daykin, director of Daykin Family Law, can assist in achieving a positive and quick solution. Contact Shannon today.