De facto Relationships

In Australian family law, the term ‘de facto’ usually refers to a relationship where a couple haven’t been through a marriage ceremony but whose relationship is, to all intents and purposes, the same as if they were married.

The Family Law Act 1975 outlines different factors that the court considers when determining whether your relationship is a de facto relationship or not.  These include things like:

• How long you and your partner have been together
• Whether you live together
• Whether a sexual relationship exists between you
• Whether you have children or not
• The extent to which you and your partner share finances
• Whether one of you is financially dependent on the other

If you’re a partner in a de facto relationship, you’re entitled to the same rights married couples have. This means you have the right to seek orders from the court for property settlements, parenting arrangements, spousal maintenance, and financial orders.

Importantly, de facto couples aren’t able to seek property settlement orders after two years from the date of separation without the leave of the court. If you’ve recently separated from your de facto partner and you’re thinking about seeking a property settlement order, get in touch with an experienced family lawyer immediately to learn what your options are.

Most states and territories, including Queensland, allow a de facto relationship to be registered with the state’s registry of Births, Deaths and Marriages. The relationship is classed as a ‘civil partnership’ upon registration.

To register your de facto relationship in Queensland, you’ll need to:

1. Visit the Queensland Government site to make sure you and your partner are eligible.
2. Complete, download and print a civil partnership application form.
3. Visit a Justice of the Peace, barrister or solicitor, a registered celebrant or another qualified witness with your required documents to have them certify the application form and your proof of ID documents.
4. Attach the certified proof of ID documents, eligibility documents and evidence of your home address to the application form, and post them to the Registry of Births, Deaths and Marriages.

For more information, visit this page.

The Family Law Act 1975 considers that a person is in a de facto relationship with another if the couple are in a relationship and are living together on a genuine domestic basis. Additionally, they cannot be married or related by family.

Establishing what qualifies as a ‘genuine domestic basis’ is the most regularly disputed issue when the court tries to determine if a de facto relationship exists. The Family Law Act outlines a list of factors that should be considered, which include:

• The duration of the relationship
• The nature and extent of the relationship
• Whether a sexual relationship exists
• The degree of financial dependence or interdependence, and any arrangements for financial support between the couple
• The ownership, use and acquisition of the couples’ property
• The degree of mutual commitment to a shared life
• Whether the relationship is or was registered under a prescribed law of a state or territory as a prescribed kind of relationship
• The care and support of children
• The reputation and public aspects of the relationship

At Bell Legal, we understand which factors are most important to the court, and we understand what evidence is needed to prove them.  If you’re trying to move on from a de factor relationship without sacrificing your rights and your property, schedule a free 30-minute consultation with one of our family law team to find out how to proceed.

The registration of a domestic relationship between two adults (regardless of their sex) with the Registry of Birth, Deaths and Marriages is considered a civil partnership.

As long as both parties are over 18 years of age, not otherwise married or in a civil partnership, not related by family, and at least one of the parties lives in Queensland, their relationship can be registered.

Upon registration of the civil partnership, a certificate will be issued, which can be used as proof of the de facto relationship and evidence of the length of the relationship.  We always recommend keeping your civil partnership certificate in a safe place, as it may be invaluable for both you and your partner in the future.

If you or your de facto partner want the court to determine a financial dispute and make a financial order, you need to apply to the court within two years of your relationship’s end. If you want to apply after two years has passed, you’ll need to secure the permission of the court.

If you’re in a de facto relationship and your partner dies, you’ll have exactly the same rights as if you were married, provided you’ve been their de facto spouse for the two years immediately prior to their death.

If your deceased partner leaves a Will, their property will be distributed as they’ve specified in the Will.  However, if you don’t think that the Will takes you into consideration or properly provides for you, you might be able to challenge it. To do so, you’ll need to prove that you were the legitimate de facto spouse of your partner.

If your deceased partner didn’t leave a Will, their property will be distributed in accordance with the rules of intestacy set out in the Succession Act 1981 (Queensland). These rules specify how a deceased person’s property should be distributed if they died without a valid Will.

To get advice about creating or challenging a Will, talk to one of our experienced estate planning lawyers.

The best way to protect your assets in a de factor relationship is to keep your finances completely separate. You can show the court your finances were separate by doing things like:

Maintaining separate bank accounts
Having no joint assets
Paying living expenses separately
Paying rent to your partner if they own the property
Not nominating your partner as a potential beneficiary in a superannuation fund or a Will

A more formal way to protect your assets is by getting your partner to sign a Binding Financial Agreement (BFA).

A binding financial agreement, often called a BFA, is an agreement between two or more people that outlines how their property, superannuation and spousal maintenance will be divided if their marriage or de facto relationship breaks down. The purpose of a BFA is to simplify property settlement during a separation so the people who’ve signed the BFA don’t have to go to court.

The Family Law Act outlines specific requirements that must be met to make a BFA binding on both partners in a relationship.