So, how does a de facto separation in NSW work? For starters, it’s like a breakup with your long-term partner. In such instances, some ex-de facto partners may think their assets or parental rights are at stake.
Thankfully, ex-de facto partners have the right to spend time with their child and get a settlement. Simply put, they have the same rights as people who seek divorce.
With this in mind, de facto couples may ask themselves, “What rights do I have if I was just in a de facto relationship?“, “I also have children! How can I work out parenting arrangements?”, or “What happens to my property or assets?”
Let’s answer these questions.
What is De Facto Separation NSW?
A de facto separation in NSW occurs when two people of the same or another sex living together separate. The Family Law Act 1975 defines de facto couples as a couple who choose to live together without being legally bound by marriage. Additionally, these couples don’t have to go through the divorce procedure to end their relationship. De facto separation also applies to same-sex couples and people married to a third party.
Section 4AA of the Act also states that a de facto relationship protects couples who cohabit but do not marry. Cohabitation is a state in which couples live together without getting married. De facto separation in NSW is still possible when relationship disputes arise. They may also want to know what rights they have when they break up.
Thankfully, de facto couples just have the same rights as a married couple after a breakup.
De Facto Separation NSW: Proving the Relationship
Yes, it’s reaffirming that de facto couples have similar rights as a married couple. However, the real challenge is proving a de facto relationship. On the other hand, legally married couples can just provide legal documents like a marriage certificate to prove their relationship.
What will de facto couples need to prove? They must be:
- Under 18 years old
- Married to each other or any other person
- Registered with another relationship in another state or territory
- In a relationship with another person
- Related to each other by family
Here are other notable conditions to consider:
- At least one party to the relationship lives in NSW.
- De facto couples do not have to live together to be eligible to register for a de facto relationship. This is a common misconception since most de facto couples live together on a genuine domestic basis.
De facto couples who want to register their de facto relationship can register at the NSW Government’s Relationships Register. Registering here can help couples define their relationship as a de facto relationship. Upon registration, de facto couples can know their rights after a breakup.
Aside from the conditions above, a couple is considered to be “de facto” if they have been in a genuine domestic relationship for at least 2 years.
What Should I Know About de Facto Separation in NSW?
Oh No! My Relationship Didn’t Last Two Years!
So, does this mean couples who were in a relationship for less than the required duration are not a de facto couple? Sadly, you can’t claim property settlement or maintenance without meeting certain conditions. Section 90YZC of the Family Law Act contains these conditions.
The family court can still consider a de facto partnership if:
- There were children in the relationship.
- A de facto partner or both partners made substantial contributions to the relationship, and failure to make a property settlement will result in serious injustice to one or both parties.
- The relationship was registered under a law of a State or Territory.
What the Court Will Look At
The court must ensure that a de facto separation in NSW has ended. Hence, they will consider whether one or more exist in the relationship:
- A sexual relationship
- Financial dependence on the other partner
- A commitment to a shared life
- The views of friends and family on the relationship
- Any history of abuse or domestic violence
Centrelink’s Role
Centrelink provides income support for Australians to pay for the costs of living. This means that de facto couples can also rest easy when they want to seek financial aid from this government agency. For Centrelink purposes, a couple is considered a de facto couple once they start living together. Similarly, Centrelink assesses a relationship by considering the:
- Degree of financial interdependence;
- Nature of the couple’s household. This includes if there are shared quarters, shared chore schedules, and joint parental care for children.
- Social aspects of the children, such as how they declare themselves in society and how society sees them; and
- Couple’s nature and level of commitment to each other.
Couples going through a de facto separation in NSW can fill up Centrelink’s separation details form if they can’t provide the separation details online. They will also review a de facto couple’s living arrangements if they are separated under one roof. As unusual as it sounds, some separated couples still have this kind of living arrangement. Read more about it in our article here.
De Facto Separation NSW: Property Settlement Procedure
Surely, de facto couples will want a just and equitable division of assets and property after separation. Parties in a de facto relationship have the right to seek a property settlement, two years after separation.
But they should not go through this legal process alone so it’s best if they seek independent legal advice from a solicitor.
Firstly, solicitors will check the asset pool and identify the property’s value, liabilities, and superannuation. Was the property individually or jointly owned? Did one partner settle at their partner’s home?
Secondly, solicitors will look into the de facto couple’s financial and non-financial contributions to the relationship. Some common disputes may stem from who made such contributions. For example, one partner had the responsibility to pay for the house’s maintenance and upkeep, while the other party funded their child’s school fees.
The Family Court uses a just and equitable way to decide on property settlement procedures in a de facto separation in NSW. So, it’s best to lower your expectations about a 50-50 split.
Read: Can My Girlfriend Take Half My House? | JB Solicitors
The Children of the De Facto Couple
The most important consideration for lawyers when they handle a de facto separation in NSW is parenting arrangements. Children spark concern in most separation or divorce cases since their best interests are the top priority. Lawyers will assess who is the primary homemaker and parent if there are children.
De facto relationships and marriages have differences in time limitations when it comes to bringing claims about property settlements.
De facto couples have a time limit of two years from the date of separation to make a claim. The time limit for de facto couples doesn’t apply if they have children with their former partner. Finally, solicitors will consider each couple’s future needs and may look at the couple’s:
Children’s general health condition and whether this will affect their earning capacity.
Age if they’re retiring, and if they’re eligible for superannuation payments;
Ability to work in the succeeding years and gather savings and accumulate assets;
Children, if there are any;
Decisions on whether they should share parental care over children;
Ongoing medical costs of children, apart from other child support costs; and
How To Protect Your Assets In A De Facto Relationship
The above-mentioned factors can help determine a just and equitable division of assets for a separated de facto couple. But a successful division of property and parenting time will depend on how de facto couples handle disputes.
Did they have a list of what they owned before they lived together? Are there parenting plans that they drafted for their child after their separation? Did they register their relationship and the last two years before the separation?
If they fail to answer these questions as a couple, their relationship may turn sour.
The surefire way to protect one’s assets after a de facto separation in NSW is to fill up a binding financial agreement, such as a post-nup agreement. Usually, this is used for couples who want to identify their assets during the relationship or after separation. Meanwhile, a prenup agreement is used before they start their relationship or marriage.
Yes! Just like married couples, de facto couples can use both of these agreements to secure their assets. This agreement can also become court orders that can be legally enforced in the event of a relationship dispute.
We Can Help You and Your De Facto Partner
Relationships that start perfect may end in a dispute when talking about property and assets. No one is safe from these disputes, you have prepared beforehand. In times where some people haven’t prepared, they can seek legal advice from family lawyers.
De facto separation in NSW is definitely an emotionally and financially draining process for de facto couples. JB Solicitors has seasoned family lawyers who can determine what is just and equitable for de facto couples. We’ll draft anyb court orders, parenting orders, and binding financial agreements to help settle any disputes you may have with your partner.
Should contentious matters arise, we have mediation services for couples who want to agree on parenting arrangements and property settlements. Mediation has proven to be a more cost-effective way of resolving disputes within a relationship. So, why not schedule a consultation with us and avoid potential and costly court procedures?
The only third party you’ll ever want to hear in your breakup is a family lawyer. So, contact a family lawyer from our firm and let us help you with your family law matter.
