De Facto Relationships
You should bear in mind that because of
the very nature of family law (and defacto property law) each case will be determined on
its own facts by the relevant Court under the Family Law Act or in the case of unmarried
couples where they have separated prior to 1 March 2009, under the Property
Law Act (Qld) (state legislation).
Separating defacto couples can now (since
1 March 2009) have their property issues dealt with in the Federal Magistrates Court or
Family Courts under Federal Legislation.
Separating defacto couples can elect to have their matter
finalised under Commonwealth Legislation (Family Law Act) where they have separated prior to 1
March 2009 and if separated after that date will automatically be dealt with under the Family
Law Act.
The Family Law Act now allows defacto couples, including
same sex couples, to have the same rights as married couples, allowing them to enter into financial agreements prior to entering a
defacto relationship, during the relationship and when the relationship ends.
Superannuation splitting laws and spouse maintenance rights and responsibilities now apply
to defacto couples.
Limitations apply to when you may apply to a Court
to finalise property matters after separation.
Call us now to find out your
rights.
How do I know if my relationship will be
considered to be a defacto relationship?
Under the Family Law Act
(the amendments including defacto relationships under the Family Law Act commenced on the 1
March 2009) a person is in a de facto relationship with another person
if:
(a) the
persons are not legally married to each other;
and
(b) the
persons are not related by family; and
(c) having regard to all the circumstances of their relationship, they have a
relationship as a couple living together on a genuine domestic
basis.
The factors a court will
consider will include:
(a)
the duration of the relationship;
(b)
the nature and extent of their common residence;
(c)
whether a sexual relationship exists;
(d)
the degree of financial dependence or interdependence, and any arrangements for financial
support, between them;
(e)
the ownership, use and acquisition of their property;
The Act also provides that
no particular finding in relation to any circumstance is regarded as necessary in making a
determination as to whether or not a de facto relationship exists. The court is to attach such weight to any particular matter as is
appropriate in the circumstances of an individual case
The new law encompasses both
heterosexual and same-sex de facto relationships.
A de facto relationship can
exist even if one of the persons in that relationship is legally married to someone else or is
in another de facto relationship.
The Court must also be
satisfied that one of four possible requirements are satisfied as
follows:
(a)
that the period, or the total of the periods, of the de facto relationship is at least 2 years;
or
(b)
that there is a child of
the de facto relationship; or
(c)
that:
(i) the
party to the de facto relationship who applies for the order or declaration made
substantial
contributions of a kind mentioned in the Family
Law Act and
(ii)
a failure to make the order or declaration would result
in serious
injustice to the applicant;
or
(d)
that the relationship is or was registered under a prescribed law of a State or Territory. (There
are no registration provisions/legislation in Queensland.)
Once a
defacto relationship is established then the mirror provisions for married couples as to
what factors the court will take into account in determining how to divide property
apply. In short what have been the parties
contributions to the property of the relationship and what other factors should be taken
into account.
The information contained above is a very short
synopsis of the law as it relates to defacto relationships. This information is not
a substitution for legal advice and is not intended that this information be relied upon
for that purpose.
