When couples in a de facto relationship separate, they often wonder if the de facto legal rights are same as divorced couples’ rights. This is a common confusion among many people. In fact, because of the uncertainty, unmarried couples feel more anxious after they separate.
There remains a lot of confusion on important things like property settlement, financial support payments, and child custody following separation.
The truth is that de facto legal rights are a lot like divorced couples’ rights. In this article we will see that the rights that de facto couples have over property settlement and other matters are very similar to those that married couples are entitled to post divorce.
This article aims to explore key concepts in relation to de facto relationships and de facto legal rights.
What Is A De Facto Relationship?
Before we explore de facto legal rights, let’s understand the difference between a de facto couple and a married couple.
The basic difference between the two is in the legal status wherein married couples have a marriage certificate, and no such certificate is involved in de facto relationships.
Although de facto relationships do not include marriage certificates, other aspects of the relationship such as long-term commitments, financial and emotional support, presence of children, etc are all the same as that of a married couple.
Importantly, a person can be in a de facto relationship with a partner of the same sex. Legally, two adults are considered to be in a de facto relationship when:
- They both are living together with each other on a genuine domestic basis; and
- Neither are the two parties married to each other, nor are they related to reach other.
A de facto relationship does not exist when one party is married to another party, or is registered in a relationship with another party. Similarly, if the parties don’t live together full-time on a genuine domestic basis, it will not be considered a de facto relationship.
Registering a de facto relationship gives legal recognition. In NSW, you can register your de facto relationship here.
De Facto Legal Rights: #1 Property Settlement & Binding Financial Agreements
The avenues available to couples who have separated from a de facto relationship are the same as those which are available for divorced couples. Much like couples who were married, upon separation, parties who were in a de facto relationship can make applications for entitlements.
Before the parties can make an application in the court, they have to satisfy at least one of the following criteria:
- Their relationship was registered in a state or territory;
- They were in a de facto relationship for at least two years;
- There is a child of the relationship;
- One party made significant contributions of assets and property and it would be unfair to not make an order in their favour
Following this, the procedures of property settlement are the same like those that are applied for married couples who have divorced. This includes things like making assessments of financial and non-financial contributions of each party, total value of asset pool, future needs of each party, etc.
Property can include things like real estate and real property, cars, bank accounts, investments, superannuation, liabilities and debts.
One difference is that married couples have 12 months after divorce to finalise their property settlement, whereas de facto couples have 24 months after separation to do so.
As part of de facto legal rights, like property settlement, the options to prepare binding financial agreements (BFAs) is also the same for de facto couples as married couples. De facto couples are eligible to prepare BFAs which can include information about asset and liabilities division in the event of separation.
De Facto Legal Rights: #2 Spousal Maintenance & Child Support
After de facto couples separate, a party can apply for spousal support or child support if there is a necessity. The same eligibility requirements which apply to divorced couples will be taken into consideration.
In assessing the application, the financial needs of the party will be considered. If it is found that spousal support payments will need to be paid to support the party until they are able to find gainful employment, such orders will be made accordingly.
#3 Parenting Orders And Children
Upon separating, de facto couples will need to make appropriate parenting arrangements for the child/ren of the relationship. Under de facto legal rights, same arrangements such as parenting plans, consent orders and parenting orders will apply.
Where both parties are able to reach agreements about parenting arrangements, they can formulate parenting plans. To formalise them, the de facto couple can apply for consent orders at the court.
Much like how family dispute resolution is advised to divorced couples who cannot reach an agreement, even separated de facto couples can attend mediation, or family dispute resolution before approaching the court.
Ultimately, if the de facto couple has to approach the court, the court will consider the best interests of the child and make parenting orders accordingly.
Importance Of Seeking Legal Advice
Many people remain confused about de facto legal rights because of the “legal” difference between de facto and married couples. However, as explained in this article, their rights are very similar to each other. Most legal procedures following separation and divorce are also similar, barring some time-limit related differences.
Because there are various processes involved after separation, it is highly recommended that you seek legal guidance to help you. These procedures can get complicated and lengthy. Moreover, it is important to be updated about all information which can be provided to you by expert lawyers.
At JB Solicitors, our team of family lawyers have a wealth of experience in dealing with de facto separation cases. They have the ability to tackle each case differently by provided tailored-advice such that clients get the best possible outcome – be it during property settlement or parenting-related matters.
For more information on such matters, contact our experienced team today.
