Worrying about de facto rights can leave unmarried couples feeling far less certain than their married counterparts about how things will play out in the event of a separation.
Getting married used to be the usual thing, done without question, but today far more couples are together in de facto relationships.
“De facto” is a Latin term meaning “of fact” and although it can be used to refer to many other things, it mostly describes a relationship.
It distinguishes unmarried relationships from married ones in terms of legal status: in the way a de facto couple behaves – shared finances, emotional support, long-term commitment, living together, having children – they are essentially the same as any married couple.
The only difference is the lack of a marriage certificate, which creates a “de jure,” or legally recognised, union.
In the day to day life of a couple, the presence or absence of an official marriage certificate does not make a huge difference.
When it comes to separation, however, matters can become a little more complicated.
Definition Of A De Facto Relationship
Before explaining de facto rights, we need to look at the definition of a de facto relationship in Australian family law.
The legal meaning of a de facto relationship is one in which two adults are:
- Neither married to each other nor related by family and
- Living together as a couple on a genuine domestic basis
A person can be in a de facto relationship with a partner of the same sex.
It is possible to be in a de facto relationship if the couple is not living together full-time, as well as if one party is legally married to or in a registered relationship with somebody else.
Proving The Existence Of A De Facto Relationship
As the main distinguishing factor between a de facto relationship and a marriage is formal documentation, de facto rights can be a little bit different seeing as there is no written “proof” of the existence of a relationship between the two people.
In order to apply for orders in court, the separating de facto couple must agree that they were in fact in a de facto relationship.
If one party contests the existence of a de facto relationship, the other is then obliged to satisfy the court that there was a de facto relationship according to the family law definition.
This party can only claim entitlements such as property adjustments after the court has determined that the parties were a genuine de facto couple.
This is a major difference between married couples’ rights and de facto rights.
The court will look at many different factors in order to determine whether a de facto relationship existed.
These matters include:
- The duration of the relationship, including any previous periods of separation
- The nature of the couple’s shared household
- The degree of financial interdependence and any arrangements for financial support
- The existence of a sexual relationship
- The acquisition and ownership of property and assets
- The degree of commitment to a shared future together
- Whether the relationship was registered in a state or territory
- The care of any children of the relationship
- The reputation of the relationship (for example if they were considered by friends and family to be a committed couple)
These factors are also known as the threshold criteria as it is necessary to establish the existence of a de facto relationship before further agreements or court orders can be made.
It is usually not necessary to establish all of these matters individually.
Registered De Facto Relationships
De facto rights include a couple’s ability to register their relationship with the Registry of Births, Deaths and Marriages in their state or territory.
This is not the same as marriage, but it does provide recognition of the relationship and can be used as part of the evidence of a de facto relationship in court in the event of separation.
In New South Wales, a couple can register their relationship as long as one of them is an NSW resident.
To be eligible to apply, both parties must be over the age of 18, not related by family, not in a registered relationship in another state or territory and not married to or in a relationship with someone else.
Both parties must then make statutory declarations stating that they wish to register their relationship, signed by an authorised witness.
There is a fee to both apply for and to revoke a registered relationship with the NSW Registry of Births, Deaths and Marriages.
One or both parties can apply to end the registration, but if only one party applies, they must show proof that they have served notice to the other party.
Revoking a registered relationship is not the same as a married couple getting a divorce or a de facto couple applying for any sort of orders in court.
It is an administrative rather than a legal procedure.
De Facto Rights: Property Settlement
Since March 2009, de facto rights regarding property settlements and financial orders have been the same as married couples’ rights.
Separating de facto couples go through the same process as divorcing couples: both can seek entitlements and both can apply in court.
There are four gateway criteria before applications can be made in court.
The couple must satisfy the court that at least one of the four following points applies to them:
- They were in a de facto relationship for at least two years
- The de facto relationship was registered in a state of territory
- There is a child of the de facto relationship
- In the assessment of property and assets, significant contributions were made on the part of one party and it would, therefore, be a serious injustice to them if an order were not issued
Upon the establishment of at least one of these criteria, the couple must satisfy the court that:
- They were in a genuine de facto relationship and this relationship has broken down and
- They have a geographical connection to the jurisdiction (e.g. New South Wales)
After this, de facto rights in property settlements mirror the rights of couples who were married.
The separating de facto couple will go through the same procedure as any divorcing couple.
Mediation will be required before the case can proceed to court.
Here, the couple may be able to work out a solution by agreement between them.
If the property case goes to court, the court will look carefully at the assets and contributions of each person to determine their entitlements and come to a fair result.
This involves considering in detail:
- The parties’ assets before the relationship (although the relevance of this will depend on the length of the de facto relationship)
- The total value of the divisible pool of assets, including property, shares, superannuation, cars and jewellery
- The contributions made by each party to the relationship, both financial (such as salary, gifts or inheritances) and non-financial (such as caring for children and running the household)
- The future needs of each party depending on their age, health, financial resources, income earning capacity and whether they will become the main parent any children will live with
The court then adjusts the property settlement to achieve an equitable result for both people involved.
Child Support And Spousal Maintenance
A divorcee can claim child support and spousal maintenance from their former spouse.
The same applies to de facto rights.
In settling finances, de facto couples can apply for child support and spousal maintenance depending on their requirements, and the court will determine the outcome in the same way as for a divorced couple.
Binding Financial Agreements
Like a married couple making a prenuptial agreement, a de facto couple can make a binding financial agreement as part of de facto rights.
This agreement would then serve the same purpose as a prenuptial agreement in the event of a relationship breakdown.
The binding financial agreement would specify the division of assets and liabilities, including superannuation and the provision of spousal maintenance, if the de facto couple were to separate.
De Facto Rights: Parenting Orders
As in the case of married couples who have children together, de facto couples must make formal agreements about the parenting arrangements for their children.
The children are considered as dependents of both parties, regardless of the sex or gender of the people in the de facto relationship.
Therefore, both parties must take part in determining parenting matters.
The agreements on parenting can be made either outside of or in court.
Participating in family dispute resolution is required before going to court for parenting orders.
The parties will need to work out:
- Who the children will live with and where
- Who they will spend time with and how this will be arranged
- Who they will communicate with
- Who will have parental responsibility for them, meaning who can make major long-term decisions about the children’s upbringing and life
If the parties agree, they can apply for consent orders in court to make this parenting agreement official.
If they do not agree, the court will determine parenting matters by working to promote the best interests of the children.
Nectaria is an Associate Solicitor, practising primarily in family law matters, but also in conveyancing, Wills and Estates and Crime. Nectaria’s experience can help you understand how the law will apply to your individual situation. Nectaria has completed a Bachelor of Laws with a Bachelor of Arts majoring in Criminology and graduated from Macquarie University with second-class honours.