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Leaving A De Facto Relationship – What Are Your Rights?

July 18, 2017


In Australia, de facto relationships are recognised by law.

When de facto couples split, they have similar financial rights and responsibilities as their married counterparts.  This includes property, spousal maintenance and child support – and just as married couples who are unable to reach agreement on financial and parenting matters when they separate apply to the Court for a decision, de facto spouses can also pursue a legal route.

A de facto relationship is one where two people who aren’t married to one another and who aren’t related to one another, live together in a genuine ‘marriage-like’ domestic situation.  For the purposes of family law and property settlement, a relationship is given de facto status when the couple has lived together for two years with same-sex relationships also considered to be de facto relationships. A relationship can also be given de facto status if you have a child together who has not attained the age of 18 years old or if the de facto partner who applies for the order made substancial contributions.

Not all states and territories operate in the same way however, so it is important to understand how the de facto law applies to you.  For example, in NSW, the ACT, Queensland and Tasmania, de facto couples can formally register their relationship as proof of its existence and duration – but it’s not possible to do this in WA.

With effect from 1 March 2009, de facto couples were given the right to apply to the Family Court for orders in respect of the division of property and children matters.  So, if you’re in WA, you can apply to the Family Court for a decision about your property or partner maintenance but you need to be aware that if your de facto relationship ended before 1 December 2002, the Court can’t make a decision about property settlement.  Also, for all states other than Western Australia, you’ll need to prove that your separation happened after 1 March 2009 and that you lived in an Australian state other than WA for at least a third of your de facto relationship.

Let’s look at what happens if you want to leave a de facto relationship.

In the first instance, you should be aware of your legal rights and responsibilities and it is worthwhile getting advice from a divorce lawyer or a family lawyer so that you can meet your responsibilites and protect your rights.

If you leave the de facto relationship and can’t afford reasonable living expenses from your own source of income, you may be able to apply for financial assistance from your former partner.

If there are children from the de facto relationship, the Family Court can make decisions about parenting and support.   It is important to note however, that the Family Law Act only makes provisions for a de facto spouse applying to the court for property settlement and/or maintenance orders if the period of the de facto relationship was at least two years or if a child is involved.   There are also time limits for making applications to the court, so separating couples need to be aware that they can only bring applications to the court within two years of the relationship ending.   If the time exceeds two years, both parties have to consent to an application for property settlement or apply for permission from the court.

Superannuation may also be affected in the event of a breakdown of a de facto relationship and you should get legal advice in relation to this.

Family law can be complicated and although de facto relationships enjoy the same status as other legally binding relationships, it is important to know how the law applies to you.

You should always get professional legal help when your de facto relationship ends, particularly if children and property are involved.

Paterson & Dowding is highly regarded firm of family and divorce lawyers in Perth with decades of experience in complex parenting matters, including de facto relationships and divorce law.   Their highly qualified team of specialist family and divorce lawyers is known for its clarity, effectiveness, practicality and skill in handling any matter, no matter how large or small.  If you’re considering leaving your de facto relationship and want to know your rights and responsibilities, you can arrange a confidential discussion with an approachable family lawyer in Perth or Joondalup by phoning 08 9226 3300 or via the website, www.patersondowding.com.au.

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