Australian couples are already aware that married people have legal rights and obligations. But unmarried couples may not be aware of their de facto rights in NSW. That’s right! Australia has laws for unmarried couples that are almost similar to those for married couples. However, it’s important to note that not all couples can have such rights because they need to meet certain conditions.
Before we explore these rights, it is essential to understand when a relationship becomes a de facto relationship. A de facto relationship exists if the couple:
- Are not married to one another and are not related to one another
- Live together in the same house as a couple
- Have a sexual relationship
- Have been in a relationship for more than 2 years. Though courts will consider couples who do not meet this condition if they have children.
So, both people in a de facto relationship must have a close personal relationship with each other. A couple cannot simply proceed with a smooth property settlement if they cannot prove that they are in a de facto relationship.
So, do you and your former partner want to know your de facto rights?
De Facto Rights NSW: Genuine Domestic Basis
To live on a genuine domestic basis with your partner is an important defining factor of a de facto relationship. Any couple can live together and claim that they were in a relationship, so we have given a list below that defines a genuine domestic basis:
- The duration of time during which the couple has lived together.
- The nature of the household;
- Whether the couple shared finances, or if there was one financially independent partner on whom the other was dependent.
- Whether the couple has committed to a life together;
- Whether the couple share children and caring arrangements;
- How other people viewed or perceived the couple – whether others saw them as a couple, or simply as housemates;
- Whether the parties involved were intimate with each other;
- The acquisition and ownership of property and assets; and
- Whether the relationship was registered in a state or territory.
Why Should You Register Your De Facto Relationship?
In NSW, you can register your relationship online on the NSW Government’s Relationships Register. When you complete the registration of your relationship, it entails legal recognition. With this legal recognition, you can invoke your de facto rights in NSW.
Apart from making your relationship legally recognisable, there are various reasons to register a de facto relationship. For example, you wish to make plans for Wills, superannuation funds, or any other plans for a de facto partner. You can apply to register the relationship if:
- Neither one of the parties is in a relationship with another person
- Both parties are over 18 years of age.
- At least one of the parties resides in NSW;
- Neither one of the parties is in a registered relationship.
- Neither one of the parties is married or related; and
- Neither one of the parties is in a relationship with another person
De Facto Rights NSW: Property Settlement
De facto couples can also go through the property settlement phase in case they break up with their partner. Much like divorcing couples, de facto couples can apply to the court and seek entitlements following separation. To do so, however, there are certain criteria that the de facto couple in question need to fulfil.
- They were in a de facto relationship for at least two years.
- There is a child of the de facto relationship.
- The de facto relationship was registered in a state or territory.
- When property and assets are assessed, it is found that one party has made significant contributions and that if an order is not issued, it would be a serious injustice to that party.
Furthermore, once the de facto couple establishes the above criteria, they must then satisfy the court that:
- There was a genuine de facto relationship between them, which has now broken down, and
- There is a geographical connection to the jurisdiction, i.e., in this case, NSW.
Upon breakdown of the relationship, one may have de facto relationship entitlements, also known as de facto breakup entitlements to their partner’s property, or any property of the relationship. Property can include various things like real estate, bank accounts, business assets, shares and other forms of investment, personal property, and debts and superannuation.
How Can Binding Financial Agreements Help?
As part of de facto rights in NSW, a couple can make a binding financial agreement or a BFA. Similar to a prenuptial agreement, upon the breakdown of a de facto relationship, a BFA will specify the division of assets and liabilities, and provision of spousal support and superannuation.
One can make legally binding financial arrangements before, during, or after a de facto relationship. Specifically, these contracts specify the distribution of assets, money, and liabilities of each party if the relationship fails.
Legally binding financial agreements include details about:
- Debts and assets;
- Jointly and individually held possessions and assets;
- Support for the spouse;
- Anticipated gifts and inheritances;
- Insurance coverage; and
- Allocation of assets.
Remember, one partner may also pay de facto maintenance for their partner if the other expresses financial dependence on them. Our article that explains this can help you understand how it works under the jurisdiction of the Family Law Act.
De Facto Rights NSW: What About Children?
We can’t rule out children who came from a de facto relationship? Upon breakdown of a de facto relationship, similar to divorce cases, the parties can make claims for spousal maintenance and/or child support. Depending on the financial circumstances and requirements, the court will deal with each de facto relationship on a case-by-case basis.
Under the de facto rights in NSW, parenting orders will be relevant for de facto couples with children. Upon separation, both parties have the right to be involved in matters concerning parenting arrangements.
Similar to all family law cases, the court will consider the best interests of the child while considering any parenting arrangement requests. However, if both parties can formulate a plan, they don’t need to approach the court.
In the event of disagreements, they will need to try dispute resolution approaches before taking the matter to court. If not, the court will make parenting orders which will be based on what’s best for the child.
We Can Help Enforce Your De Facto Rights in NSW
Breakups can brew a lot of legal disputes, especially for couples who have big assets or children. We at JB Solicitors empathise with this fact and help you understand how you should handle such matters without causing further disputes. There are many factors that the court may consider, and you may not understand all of them at once.
If you have any concerns regarding property settlement and asset division, it is best to seek legal guidance. We advise that you seek mediation from our firm to help you avoid court battles that can be lengthy and expensive. Instead, you can allocate that money for potential parenting orders and BFAs!
Get in touch with our family lawyers today.
