Family Lawyers & Mediation Services - 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; andML:NAMESPACE PREFIX = O />
(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.
