Contrary to popular belief, De facto rights in Australia are pretty similar to that of marital rights.
That’s right! From a legal standpoint, once you have proved the existence of a de facto relationship and a date of separation if need be, your rights as a de facto couple are not all that different to married couples.
The following article will discuss everything you need to know about your rights as a de facto couple living in Australia.
De Facto Rights Australia Compared To Marital Rights
Something which may interest you to know is that de facto rights in Australia are pretty similar to martial rights under the law. Despite not having to register a de facto relationship, the rights and entitlements of de facto relationships are almost identical to that of a marriage once the relationship is registered.
The critical difference between the two is the added challenge of proving the existence of the de facto relationship due to a lack of legal documents and a date of separation to satisfy time-frame requirements for when a property settlement may be brought forward. Contrastingly, in marriage, it is clear when a couple has been married and when they are divorced.
Similarly to these, registering a de facto relationship will help greatly assist in proving the existence of the relationship. Accordingly, if your de facto relationship was to break down and the division of property and assets was a matter pursued in Court, it would be decided in much the same way as a marriage.
When Do De Facto Rights Australia Arise?
To pursue a financial matter involving De facto rights Australia, you need to apply for orders within two years of the breakdown of the relationship. This means two years from the day you stopped being in a relationship and broke up.
If you are applying after two years has elapsed, you will need special permission to do so, which can be obtained if you have a sufficient reason for your late application.
For De-facto relationship break up entitlements to legally arise, the Court must be satisfied with the following:
1. The de facto relationship was a genuine domestic relationship; and
2. One of the following criteria are satisfied:
- The couple has a child together; or
- The relationship lasted for a minimum of two years; or
- The relationship is registered under State or Territory legislation; or
- Either party has made significant financial or non-financial contributions, and not acknowledging them would result in an injustice.
De Facto Rights Australia Concerning Property
Regarding claims for the property, De facto rights are slightly more limited and necessitate the couple either living together on a genuine domestic basis for two years or having a child together.
Here are some examples of Property and Assets considered by the Court:
- Homes and other real estate;
- Shared and personal bank accounts;
- Personal property;
- Superannuation funds;
- Any forms of investments such as shares, bonds, collectables etc.;
- All forms of vehicles;
- Business assets; and
The Court may also consider some other issues in determining your De facto rights concerning a property division which includes:
- Whether a significant injustice would occur which would leave one party to the relationship at a substantial financial disadvantage; and
- If one of you has made any substantial contributions to the assets or finances throughout the relationship, it would be unfair not to acknowledge that contribution.
De Facto Rights Australia Concerning Children
Now let’s proceed to discuss de facto rights Australia concerning children.
The two year period for a de facto relationship to be established does not apply to de facto relationships involving children. As such, despite the duration of your relationship, the Court’s will consider both de facto partners as responsible for all parental duties concerning their children.
Children from de facto relationships are protected under the Family Law Act 1975 – similarly to children of married couples. This is done to protect the children’s best interests, who are innocent parties and need to be protected.
Like marriage, a significant right for a former de facto parent who has a majority of the custody of the child and is primarily responsible for the child’s care and upbringing is child support. Regardless of whether or not you were married, if one party is primarily responsible for the care of a child or children, they are entitled to claim child support from their former partner.
Importance of Seeking Legal Advice
When discussing de facto rights Australia, it is essential to remember that every de facto separation is different and will have different circumstances that will apply if a property settlement arises in Court.
If you are/were in a de facto relationship and would like to obtain some advice regarding your entitlements, please do not hesitate to reach out to our team.
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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