A big guide to de facto relationship rights & break up entitlements

Separation is a complex and difficult time in a person’s life in circumstances where you’re not married. When separating, there are lots of questions that you may have: what’s going to happen to the Financial Institutions; can my girlfriend take my house; can I get what I deserve if I’m not married?

The first thing to understand in this process is where you stand, how best to move forward and how best to protect yourself and your assets. Not being married does not decrease your rights to protect your assets, however, it may change your approach to separation. 

By Mitchell Patel, Lawyer at Roger Fritz LLP.

What is a de facto relationship?

There is a lot of confusion around what is a de facto partner. How do you work out if you are in a de facto relationship? Simply put, a de facto partner is your partner that you have not married, yet live together on a genuine domestic basis.  But what does ‘genuine domestic basis’ really mean?

Essentially, to determine if you are in a de facto partnership, the court would look at one or more of the following criteria:

1. The duration of the relationship was longer than 2 years;
2. There is a child of the relationship; and
3. Whether there were substantial contributions by one party that show the existence of a relationship.

You need not show all of the above factors to establish a de facto relationship. In assessing whether one exists, the Court may also consider:

1. Whether there was a sexual relationship;
2. The level of financial interdependence;
3. Whether there was a commitment to a shared life; and
4. Whether other people viewed the relationship as a genuine partnership.

It is important to note that not all of the factors are prerequisites for there to be a de facto relationship. For example, while most de facto partners live together, it is possible to have a de facto partner while living separately.

Why is it important to know your rights?

As a lawyer, clients often ask me “What are my rights as a de facto?” I always emphasise to these clients that, on balance, their rights are the same as those of a married couple in Australia. Although, there are some differences:  

• In a de facto relationship, there are time limits that apply to de facto relationships. Once the de facto relationship ends, both you and your partner have 2 years from the date of separation to finalise any property settlement matters or any maintenance applications.
• Should you miss this window, at an additional cost, you will be required to complete an ‘out of time application’ where you must prove why you were unable to lodge an application to the court in the required time.

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Advantages of a de facto relationship

• Generally speaking, de facto couples have similar rights and entitlements to married couples.
• De facto partners will have a right to seek a property settlement following separation, with all the ordinary benefits that come from that process.
• However, entering into a registered de facto relationship with a State or Territory is not always worthwhile and does not ordinarily provide any additional rights or entitlements beyond what you would already have.

If you separate, there is no cost of divorce. Instead, there is a limitation period for commencing property proceedings based on your date of separation. See our guide on limitation periods for more information. 

Disadvantages of de facto relationships

• In a long-term de facto relationship, a party who brought significant assets to the relationship will likely find those assets are included in the property pool once the parties separate.
• Without a clear divorce date, the date of separation can become a more contentious issue for de facto separations.
• De facto couples previously had different rights under Western Australia Law. This has recently changed.

De facto break up entitlements in Australia

If a couple is found to be a de facto couple, then under the Family Law Act, they have the same entitlements as a married couple in Australia. The general process of determining the entitlements following separation then proceeds in a four-step approach:

1. Determining all property owned by the de facto couple.

This includes any asset, liability or financial resources owned by either party. There is no way to prevent any asset to be seen by the other party as you have an obligation at law to disclose everything. In other words, you must put “everything on the table”. Don’t worry, this does not mean you will lose everything!

2. Determining the contributions of the parties.

This involves working out what each party put toward the relationship, whether that be financial contributions, contributions toward the home and child-rearing or any improvement to any assets. It is important to remember that a financial contribution does not out way a non-financial contribution because it simply increased the value of the asset pool.

3. Determining any other relevant factors

Essentially, in this step the parties determine if there are any other factors that need to be taken into account for the settlement such as: who has care of the kids, does one party have an ability to maintain an income and whether there are any health issues related to the party.

4. Just and equitable

This step is complex and occasionally requires complex legal analysis. Essentially this step is to ensure that the process at steps 1, 2 and 3 achieves the right outcome. This step will consider any unusual or unique circumstances and may make further adjustments as a result. Essentially, it is the ‘vibe’

How to register a de facto relationship in Australia

Each state has different requirements to register de facto relationships. You should contact your state’s Birth, Deaths and Marriages office to work through this process. Roger Fritz LLP can also give you some help with this on a state-by-state basis.

It’s important to remember that no matter what the situation, there is always help and assistance available. If you have any questions about your de facto relationship rights and break-up entitlements in Australia or if you are seeking any information about your rights, request a call back from our friendly team via the form below, or simply call us directly.