If you have been living together with your partner for a couple of years, or have a child together, or maybe share some property and assets, you may be wondering whether you are in a de facto relationship or not.
This article aims to provide a quick guide on what legally constitutes a de facto relationship and highlight the various advantages and disadvantages of a de facto relationship.
What Is Legally A De Facto Relationship?
The Family Law Act defines a de facto relationship as a genuine domestic situation where a couple is living together and not married or related. This definition is quite broad. Accordingly, if a matter involving a couple was to proceed to court, the court will need to determine whether a de facto relationship exists which attracts legal entitlements.
To prove it was a genuine domestic relationship, the de facto couple may have to show at least one of the following:
- Their relationship lasted for a minimum period of 2 years.
- The relationship was registered within a territory or state
- There is a child of the relationship
- One party made substantial financial or non-financial contributions to their property or as a parent or homemaker, and grave injustice would result if the order was not made
Here are some additional factors the court will consider in its determination:
- How much, if at all, the couple has combined their finances and assets
- Whether the couple is intimate with one another
- How long the couple has been together, including any periods of separation
Disadvantage – Proving The Relationship Is a De Facto Relationship
As mentioned above, one of the more significant disadvantages of a de facto relationship relates to proving the existence of the relationship legally. For a de facto couple to receive the same rights as married people concerning parenting orders, property settlements and spousal maintenance, they must first provide a genuine domestic relationship based on the factors mentioned above.
Disadvantage of Uncertainty
As mentioned above, the court will need to determine whether a de facto relationship exists if an issue arises that needs to be settled in court. As such, a significant disadvantage of a de facto relationship is the uncertainty it presents. For some individuals, it could be highly detrimental to their financial well-being following the breakdown of their relationship if the court was not satisfied that they were a legal de facto couple. This would mean that any property or assets belonging to the couples were never ‘shared’, and there is nothing to split.
Advantage of Uncertainty
In reference to the above disadvantage, if a de facto relationship is not established in the eyes of the law, this could be of great benefit to one party of the relationship. Suppose you bring prior assets into the relationship in a marriage or de facto relationship. In that case, your interest in these assets slowly erode over time and essentially become shared assets with your spouse. As such, if a de facto relationship is not legally established, the interest in your property and assets will remain 100% yours.
This is an advantage that should be taken with a grain of salt, as it relies upon the court deeming that your de facto relationship does not exist in the eyes of the law.
Advantage – Children Are Protected
If you and your partner shared a child, then the minimum period of 2 years is not required for the relationship to be legally recognised. Merely having a mutual child is enough to establish you have resided with one another on a ‘genuine domestic basis’.
Children of de facto relationships are also covered in the Family Law Act. Accordingly, the court considers the parties of a de facto relationship responsible for all parental duties of their children, regardless of separation or any new partnerships.
Advantage – Similar To Marriage Rights
Although you are not required to register a de facto relationship, once the relationship is registered, rights nearly identical to marriages arise under law. Again, the only significant difference is related to proving the existence of the relationship, which is a challenge because of the lack of legal documents involved in a de facto in contrast to marriages. Registering the relationship will, however, aid in counteracting this.
This means the division of property and assets will be conducted in the same manner in a de facto relationship as it would be in a marriage divorce.
Importance of Seeking Legal Advice
It is important to note when considering the advantages and disadvantages of a de facto relationship, whether a de facto is right for you will depend on your circumstances. If you would like to discuss your particular circumstances, please feel free to contact our team of friendly and experienced family lawyers.
Here at JB Solicitors, we’ll make the process as pain-free as possible. We have fixed-fee pricing for family law, giving you a clear sense of the costs from the start, and we will be sure to help you out every step of the way. With years of experience under our belt, we pride ourselves on making each client’s family law experience as positive as possible.
Contact JB Solicitors today to speak with one of our friendly and experienced family lawyers.
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