De-Facto Agreements

Your de facto relationship and family law

Marriage isn’t for everyone. Yet, despite alternative relationships growing in popularity, de facto couples have been in the past, left relatively unprotected if a relationship were to dissolve. Today’s legal landscape is more in step with the nation. Recent amendments to the Family Law Act now ensure Australia’s de facto couples, including same-sex couples, share the same rights as their married counterparts regarding property distribution and child custody. They’re also entitled to enter into financial agreements with their spouse at any point at the beginning, middle or end of their relationship.

What defines a de facto relationship?

A de facto relationship is defined through a framework including time, living situation and financial contributions.

Your relationship is defined as de facto if any of the following apply to your situation:

• your relationship lasted for more than two years;
• you and your partner have a child;
• the relationship was registered;
• you’ve made substantial contributions to your partner financially or to a shared home.

What if my ex and I dispute whether or not it was a de facto relationship?

Occasionally there will be contention over whether or not two parties were in a de facto relationship. Sometimes the argument is genuine and at other times it is used to avoid property settlements.

In these cases the court will assess that status of the relationship by looking at:

• how long the relationship lasted;
• whether or not the couple were living together;
• whether there was a sexual relationship;
• whether you had children or cared for children from a previous relationship together;
• whether you owned property;
• if the relationship was registered under state or territory law;
• the way you presented your relationship when in public.

Does property settlement differ for de facto and married couples?

Not really. As solicitors we still favour out-of-court settlements for both de facto and married couples. They’re less stressful, costly and time consuming – so they’re the ideal solution during an already emotionally fraught time. Our solicitors will use one, or a combination, of the following processes in order to keep your separation out of court:

• mediation
• negotiation
• family dispute resolution
• arbitration
• collaborative law
• child-inclusive processes.

If you and your partner agree on how to divide your shared property

Amicably agreeing on how to split your assets is obviously the best outcome at the end of a relationship. Though it’s a good idea to have your solicitor register your final agreement with the Family Court in the form of Consent Orders.

The Consent Orders will typically stop you from having to pay stamp duty on properties sold or handed over; they also finalise your agreement preventing any possibility of a future dispute over further assets.

Alternatively you can also organise a legally-binding financial agreement.

What happens if your de facto settlement goes to court?

If mediation fails, and your settlement case does end up in court, the following will be considered:

The assets both parties entered into the relationship with. The court will assess the relevance of these assets based on the length of the relationship and how much time and money each person made to their upkeep or improvement.

For example: Sandra and Matthew have been together for five years. They lived for the majority of that time in a home purchased by Sandra two years before they became a couple. During their relationship Matthew made financial contributions towards the property both in mortgage payments and in renovations. Matthew has the right to claim his fair share of that property.

What will be considered by the courts?

The value of your current assets including cars, boats, superannuation and property.

The financial contributions made by each person over the course of the relationship––this includes wages, rent, mortgage payments or payments towards the improvement of a property.

The non-financial contributions made over the course of a relationship including household maintenance and the care of children.

And finally what each person will need in the future in order to care for both themselves and any children from the relationship.

Looking to speak to someone about your de facto relationship?

From financial arrangements to property settlement our family law solicitors are available to answer your questions. Fill out an enquiry form now and get the information you need to move forward.

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