De facto relationships are rising in Australia, but what does this mean legally?
Many need to be aware of their rights in such unions.
While love might be straightforward, ‘de facto relationship rights in Australia’ can be a maze. It’s vital to know what you’re entitled to.
Definition of a De Facto Relationship
The term “de facto relationship” might sound fancy, but what does it mean in Australian law? Under Section 4AA of the Family Law Act 1975, specific criteria must be met to determine if a couple is in a de facto relationship:
- Duration of the relationship: How long have you been together? Time matters.
- Nature of shared residence: Are you living together? How is your household set up?
- Financial dependence: Is there a shared bank account or financial responsibility?
- Ownership and use of property: Who owns what, and how is property utilised or shared?
- Existence of children: Have you started a family together?
- Mutual commitment to a shared life: Is both parties have an evident long-term commitment?
Understanding these factors is the first step in knowing where you stand legally within a de facto relationship in Australia.
Rights and Entitlements in a De Facto Relationship
In recognition of changing societal norms, Australia’s laws have broadened the legal recognition of de facto relationships, offering them many rights formerly limited to marriage. Let’s dive deeper into these areas:
- Equal Rights: Both partners in a de facto relationship enjoy equal parental rights. This ensures parity in decision-making, from choices about education to healthcare.
- Court Orders: In cases where agreements can’t be reached mutually, courts can provide orders dictating custody arrangements, visitation rights, and other parenting responsibilities.
- Best Interests of the Child: Any legal decision or agreement always puts the child’s welfare at the forefront, ensuring their physical and psychological well-being.
- Mandatory Responsibility: The law mandates parents to provide financially for their offspring, irrespective of their relationship status.
- Child Support Agency: This governmental agency oversees the assessment, collection, and transfer of child support, ensuring both parents contribute fairly based on income, living arrangements, and the child’s needs.
- Enforcement: In cases where a parent doesn’t comply with support requirements, the law has provisions to enforce these obligations.
Maintenance and Support
- Assessment Factors: Spousal maintenance isn’t automatic. The court considers various aspects, such as the capacity to earn, the age and health of the parties, and their standard of living during the relationship.
- Duration: Unlike child support, spousal maintenance isn’t forever. It’s usually designed to allow the lower-earning party to adjust post-separation.
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 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 married couples.
The separating de facto couple will undergo 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 depend 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.
By understanding these rights and entitlements, individuals can navigate the complexities of de facto relationships in Australia with more confidence and clarity. It’s essential for anyone in or considering entering such a relationship to be fully aware of the potential legal implications.
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 case 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.
Registered De Facto Relationships
In Australia, de facto couples can register their relationship, offering an added layer of official recognition. Here’s a glance at what it entails:
Registration is a formal acknowledgement by the state, often simplifying legal procedures during separations or disputes.
- Eligibility: In New South Wales, one partner should be a resident. Both must be 18 or older, unrelated, and not already in another registered relationship or marriage.
- Application: Couples make official declarations about their relationship, which an authorised person then witnesses.
- Fees: There are application and revocation costs to consider.
- Revocation of Registration: In NSW, either party may revoke the relationship registration, but this is a separate administrative action from legal separations.
Registering provides a safeguard, especially when navigating legal aspects of de facto relationships.
Proving the Existence of a De Facto Relationship
Proving the existence of a de facto relationship in Australia can often be more complicated than validating a formal marriage, where a certificate serves as clear evidence of the union’s authenticity.
Unlike marriages, traditional documentation for de facto relationships can be elusive, presenting a challenge for those involved.
Often, the onus falls squarely on one partner to present substantial proof of the relationship’s genuine nature to the court. This proof frequently revolves around essential criteria such as the duration of the relationship, shared living arrangements, and intermingled financial ties.
Satisfying these benchmarks isn’t just a matter of formality; it’s crucial for securing the legal rights and entitlements that come with being recognized as a de facto couple.
Fairbairn v Radecki (2022)
In “Fairbairn v Radecki” (2022), the High Court of Australia delved into de facto relationship rights. Beginning their relationship in 2005, the couple chose to keep finances separate. However, tensions arose over the relationship’s status with the wife’s declining health by 2017.
While living separately doesn’t always signal a breakdown, the court emphasised the significance of mutual support and commitment. The husband’s unilateral decisions during the wife’s cognitive decline and refusal to adjust to her needs were vital indicators.
This case underlines that while there are clear guidelines to recognise a de facto relationship in Australia, discerning its breakdown hinges more on actions and intentions than living arrangements.
Need Clarity on De Facto Relationship Rights Australia?
Navigating the complexities of de facto relationships can be challenging. At Justice Family Lawyers, we specialise in guiding individuals through Australia’s de facto relationship rights intricacies. Stay aware of your rights and obligations. Let our experienced team provide the clarity and support you need. Contact Justice Family Lawyers today – because understanding your rights is the first step towards justice.
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.