Are de facto relationship property rights any different than married couple property rights? The answer is no. De facto relationship property rights are in fact the same as married couple property rights.
Many years ago, the law only recognised a “marriage” between two parties. Today, the law also recognises “de facto” relationships. This also includes de facto relationship between same-sex parties.
When discussing de facto relationship property rights, we are referring to property rights after the relationship breaks down.
It is important to note that under Australian law, de facto couples have similar rights as compared to married couples. Therefore, de facto relationship property rights are the same as married couple rights after a divorce.
But, the de facto couple needs to meet certain criteria in order to prove their legal de facto relationship. Read on to find out the criteria.
The breakdown of a de facto relationship is referred to as “separation” and not divorce. This article will discuss de facto relationship property rights and entitlements.
What Exactly Is A De Facto Relationship?
Section 4AA of the Family Law Act (1975) defines a de facto relationship. A person is said to be in a de facto relationship with another person if:
- The persons are not legally married to each other;
- They are not related to each other by family; and
- The persons have a relationship as a couple living together in a genuine domestic basis.
Notably, “genuine domestic basis” is often the characteristic feature of a de facto relationship. There are certain factors that determine whether or not a couple has lived together in a genuine domestic basis. These include:
- The duration during which the couple has lived together;
- The nature of the household;
- Whether the parties registered their relationship in a state or territory;
- Financial situation of the couple – whether they shared finances, or if one party was financially dependent on the other;
- Whether the parties were intimate with each other;
- Other people’s views and perceptions about the couple;
- Whether the couple has committed to a life together;
- The acquisition and ownership of property and assets; and
- Whether the couple have children, and share caring arrangements for the children.
De facto couples can register their relationship. Different states and jurisdictions have different portals that allow couples to register their de facto relationship.
In NSW, de facto couples can register their relationship on the online registry. While it is not a requirement, lawyers recommend that you register your de facto relationship. This makes it easier to prove that such a relationship existed.
De Facto Relationship Property Rights
Much like divorced couples, under de facto relationship property rights, separated parties can seek property entitlements. This can either be done by way of mutual agreements, or by making applications to family courts.
What does property include?
Property can include both assets and liabilities. Assets include a number of different things such as:
- Superannuation funds
- Bank accounts
- Business assets
- Personal property such as cars
- Real estate
- Shares and investment revenue
Liabilities can be:
If the couple is able to reach agreements, they can enter into a binding financial agreement (BFA). The BFA can outline how division of assets can take place between the parties such that both parties are able to realise de facto relationship property rights.
In cases where parties cannot make mutual agreements, they can file court applications. To apply to family court, the couple will need to satisfy at least one of the following points:
- They shared a de facto relationship that lasted for at least 2 years.
- Their relationship was registered in a state or territory and hence was legally recognised.
- There is a child of the de facto relationship.
- Upon assessment of assets and property, it is discovered that one party has made substantial contributions to the asset pool. Hence, if courts do not make an appropriate order, it would be a grave injustice to that party.
De Facto Relationship Property Rights: Additional Information
It is important to note that while de facto relationship property rights are same as married couple’s property rights, the time limits differ.
De facto couples have 24 months i.e. 2 years to bring an application for property settlement. On the other hand, divorced couples have 12 months after the divorce is finalised to file applications for property orders.
How to protect assets in de facto relationships?
As mentioned above, binding financial agreements can help both parties to protect their assets. The couple can enter into a BFA either before or during their relationship. If not, the couple can also enter into a BFA after their relationship has broken down.
Th terms of a BFA will be binding on both parties. Hence, it is a popular option among separated couples.
Seek Family Law Advice
Family law is one of the most complex fields of law. This is especially true because under family law, each jurisdiction may have different laws that need to be followed. Therefore, it is important to seek family law advice from legal professionals.
The breakdown of a de facto relationship can be extremely stressful. Each party will want to ensure that property settlement arrangements and child custody arrangements favour them.
It is important to reach mutual agreements for all such matters. Our lawyers can help parties reach such agreements through mediation and family dispute resolution.
At JB Solicitors, our family lawyers can guide you through all necessary processes following your divorce or separation. Family law can be complicated, and can often get very technical. This is why it is important to seek guidance from experienced family solicitors.
Our lawyers can help with drafting binding financial agreements. Moreover, we can provide legal support throughout all property settlement and child custody procedures.
If you matter escalates, and requires court processes, our lawyers can represent your case. We offer fixed-fee prices for our services.
Contact our solicitors for more information.