Cohabitation is a way to discover new ways to elevate your relationship with your partner. Either married couples or de facto couples (unmarried couples) can cohabitate. But what is cohabitation? Cohabitation is just a legal term for “living together under one roof”. So, yes, some of you may have already cohabited with someone.
While this living setup is common for married couples, it is also common for de facto couples. Cohabitation can also occur between opposite-sex couples and same-sex couples. Simply living with someone and being in a sexual relationship with them does not in itself mean you are already in a de facto relationship. A person is in a de facto relationship with another person if:
- The persons do not have a marital status, or are not legally married to each other;
- The persons are not related by family, and
- They have a cohabiting relationship and are living together on a “genuine domestic basis.”
Indeed, to live with your partner long-term is the end goal of most relationships. However, it is important to realise that doing this will lead to legal implications. Let’s read on to what these legal implications are.
What Constitutes a “Genuine Domestic Basis”?
While determining a “genuine domestic basis” may vary depending on your circumstances, certain factors that the Family Court will take into consideration include the following:
- The duration of sharing a common residence,
- nature of the relationship; if it was intimate,
- How much financial dependence or independence exists,
- whether you have joint assets,
- whether you have children and support arrangements (the same case goes for de facto couples who have children from a previous relationship),
- The extent of your mutual commitment to a shared life, and
- How people perceive your relationship – whether they see you as a couple or as housemates only.
Case Example About Cohabitation
When assessing the relationship, the Family Court looks at all of the circumstances of your case. Let’s use the case example of Weldon & Levitt [2017] FCCA 3072. Despite having two children, the Court decided that the couple was not in a de facto relationship. The judge’s ruling, which prevented a property settlement, stemmed from inconsistencies:
One party declared the relationship as de facto, while the other did not.
Both cohabited for less than a year, and Mr. Weldon paid child support. The couple only had an intermittent sexual relationship for 13 years. Hence, the judge:
- Dismissed Weldon’s claims
- Removed property caveats
- Declared the absence of a de facto relationship
So, Why Do Unmarried Couples Choose To Live Together?
The Australian Institute of Family Studies can answer this question. According to their study about cohabitation, unmarried couples chose to cohabitate due to perceived immaturity or unsuitability for marriage due to perceived immaturity or unsuitability for marriage. Some couples also thought of relationship instability and compatibility.
In other words, cohabitation is the easy way out in case of a breakup. Compared to marriage, divorce is too lengthy a procedure. On the brighter side, some couples considered cohabitation as a step in courtship, as this may lead to marriage or the desire for it.
What Does the Law Say About Cohabitation?
The Family Law Act 1975 has laws about cohabitation in Australia. The court can use this in certain family law cases, specifically paternity and divorce.
Section 50 of the Act discusses the resumption of cohabitation after divorce. Yes, some parties to a divorce resume cohabitation after separation. This section recognises separated couples that reconcile. However, if the reconciliation fails within 3 months, it will not affect the overall period of separation
On the other hand, cohabitation can also affect paternity cases. Paternity cases happen when the court wants to know who the biological father of a child is for child support and custody purposes. Section 69Q of the Act discusses the presumption of paternity due to cohabitation.
- Both parties are over 18 years of age,
- At least one of the parties resides in NSW
- Neither party is in a registered relationship, is married or related, or in a relationship with another person.
Can I Legalise My De Facto Relationship?
Yes! In our recent case, a de facto relationship status was out of the picture. They could have prevented a court case if they had agreed to register their de facto relationship. In NSW, you may apply to register the relationship if you meet the following requirements:
Apart from making your relationship legally recognisable, there are various reasons to register a de facto relationship, such as your wish to make plans for Wills, superannuation funds, or any other plans for a de facto partner.
Cohabitation versus Marriage
Indeed, cohabitation and marriage have similarities. They both deal with topics like debt responsibilities, division of assets, support payments, and information regarding children. However, we should note that there are significant distinctions between the two:
- As to the formal steps. A married couple needs to obtain a marriage licence; cohabiting couples don’t require any formal or legal steps to start cohabiting.
- As to ending the relationship. Ending a marriage in Australia requires the formal process of filing for divorce or annulment, as the case may be. Cohabiting couples who have registered their relationship have to revoke that registration, which can be an informal process, depending on the terms and conditions of your Cohabitation Agreement.
- As to the effects of death. If a spouse in a marriage dies without leaving a Will, the surviving spouse will usually inherit part of the estate. However, the surviving partner in a cohabitation relationship may not have an automatic right to any inheritance if there is no Will.
Couples who are cohabiting may not have the same legal protections as those who are married, such as health benefits and tax benefits. Moreover, couples must often create their own agreements about asset division and child custody. At the end of the day, married couples have the better end of the stick with laws that support and protect
Considering Cohabitation Agreements
A cohabitation agreement is a legal document between an unmarried couple that specifies what will happen to various assets in the case of a future separation. While it is not compulsory for couples living together in Australia, a cohabitation agreement is legally binding so long as they comply with the requirements in the Family Law Act 1975.
This agreement is a type of Binding Financial Agreement (BFA) regulated under Sections 90UB and 90UC of the Family Law Act 1975. A cohabitation agreement can cover some or all assets and debts of the couple such as:
- Separate assets: property or items one partner owns and retains all respective rights of ownership to after a breakup.
- Shared assets: property or items both parties own that are divided after a breakup, as agreed upon.
- Debt obligations: joint debts that both parties are responsible for in the event of a breakup, such as co-signed loans, and
- Maintenance payments: financial support that one party might give the other partner. The partner who is experiencing financial hardship is usually the person who receives maintenance payments.
While a cohabitation agreement is not legally mandatory, the existence of one ensures that you get a say over what happens in case of separation. A cohabitation agreement is considered binding if both parties receive independent legal advice before signing.
Can I Get Financial Orders Over Properties After Separation?
The Family Court can only make orders on the division of property. This happens only if it is satisfied that a de facto relationship did exist in the first place. Moreover, it requires that one of the following is present:
- You have been in a de facto relationship for at least two years;
- There is a sexual relationship
- Degree of financial dependence
- You and your partner have children;
- Your relationship is registered, or
- There is a recognition that significant contributions were being made by either you or your partner, and the failure of the Court to issue an order would result in a serious injustice.
It is crucial to note that to claim property settlement, there is a time limit of two years following the date of your separation.
What About Maintenance After We Separate?
People in de facto relationships can also apply for maintenance if they cannot adequately support themselves. For example, Partner A was dependent on Partner B financially because of unforeseen circumstances. Whether such an application is successful will depend on your needs and your former partner’s capacity to pay.
Factors that include a person’s ability to provide maintenance include:
- Age;
- Income, property, and financial resources; and
- Ability to work. Family courts will also consider whether the relationship has affected a partner’s ability to earn.
Your former partner does not have to pay maintenance if they are not reasonably able to do so. The partner who requests maintenance cannot automatically receive it as well.
Why Should You Seek Independent Legal Advice?
JB Solicitors can help you understand everything you need to know about cohabitation and de facto relationships in NSW. Independent legal advice is important so both parties have a chance to present their case.
Our team of expert family lawyers can help with any concerns you have regarding property settlement and entering into legal agreements with your cohabiting partner. We can also defend our client’s legal rights when they are in a difficult divorce case
Contact us today if you want to seek advice about drafting your own cohabitation agreement or binding financial agreement.
