Did you know De facto rights are not all that different to marital rights?
The end of a De facto relationship can be a challenging and emotional experience. Many people in a De facto relationship are also unaware that they may have legal rights and entitlements similar to married couples.
The purpose of this article is to discuss De facto rights in detail. Namely, when legal De facto rights arise and what they in relation to property and children.
When Do De Facto Rights Arise?
To pursue a matter concerning De facto entitlements in a Courtroom setting, De facto financial orders must be applied for within two years of the breakdown of a De facto relationship.
If you are applying after two years, you must obtain special permission from the Court to apply.
The Court must also be satisfied with the following before determining your dispute:
1. The De facto relationship which has broken down was a genuine domestic relationship and;
2. Any one of the criteria below are met:
- The couple has a child together.
- The relationship lasted for a minimum of two years
- The relationship is registered under the legislation of the State or Territory
- Either party has made substantial financial or non-financial contributions throughout the relationship, which has benefited both parties, and It would be an injustice if they were not acknowledged.
De Facto Rights Versus Marital Rights
It may shock to know that De facto rights are pretty similar to martial rights under Family Law. If your De facto relationship was to break down, and a matter was pursued in Court such as a division of property and assets, it would be decided similarly compared to marriage, assuming the existence of the relationship was proved sufficiently.
The fundamental difference between the two is having to prove the existence of the De facto relationship if a matter transpired in Court. This can be attributed to a lack of legal documents proving the relationship, unlike in marriage.
Once a De facto relationship is registered, the De facto rights and entitlements in a De facto relationship are virtually identical to marital rights, with only a few minor exceptions. Accordingly, registering the relationship is considered strong evidence of the relationship.
De Facto Rights Concerning Children
Just as in the case of married couples, children of De facto relationships are also protected under the Family Law Act (1975).
Where there are children involved in a De facto relationship, the usual minimum two-year period of a relationship or registration does not apply to establish a De facto relationship. This is because the couple has a child together.
Accordingly, De facto partners will be considered responsible by the Court for all parental duties concerning their children, regardless of whether the parents are separated and any new relationships.
What Property & Assets Do The Courts Consider?
Before discussing the issue of De facto entitlements concerning property and assets, it would be helpful to understand what types of property and assets the Courts will consider.
Here are some examples of property and assets the Courts will consider:
- Homes and other real estate
- Personal property
- Shared and personal bank accounts
- Any forms of investments such as shares, bonds, collectables and so on
- Superannuation funds
- Debts
- All forms of vehicles
- Business assets
De Facto Rights In Relation To 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.
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
- 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.
Importance of Seeking Legal Advice
It is essential to note that whether De facto legal rights can be established will depend on your particular circumstances
when discussing De facto rights.
Please feel free to contact one of our friendly and experienced family lawyers for a free initial consultation to discuss your situation further. We are here to help.
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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