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What does ‘de facto’ mean?

The term ‘de facto’ comes from the Latin and means simply ‘in fact’. It is a phrase used to describe a situation which is is factual and exists for practical purposes but which doesn’t have legal formality.

In Family Law the expression ‘de facto’ usually refers to a relationship where the couple haven’t been through a marriage ceremony but whose relationship is to all intents and purposes the same as though they were married.

What is a legal de facto relationship?

The legal definition of a de facto relationship is provided by section 4AA  of the Family Law Act 1975

It really depends upon the nature of your relationship. Factors to consider:

  • How long were you together?
  • Were there any children of the relationship?
  • Living arrangements
  • Shared residency
  • Financial intermingling
  • Joint or separate property
  • Sexual intimacy
  • How did others see your relationship?

 

2 year rule does not always apply

If a de facto relationship exists at law there may be an entitlement for one or both of the parties to apply for a property settlement. The law (see section 90SB of the Act) typically requires a de facto relationship to have been for at least 2 years before an application may be filed but there are exceptions to this rule such as:

  • Where there is a child of the relationship
  • Where one party has made substantial contributions and it would be unfair not to recognise these

Talk to us to find out if yours is (or was) a de facto relationship as far as the law is concerned.

 

Why does it matter?

If yours is or was a de facto relationship as defined by the Family Law Act then there may be legal consequences. For instance, you or your former de facto partner may be able to claim spousal maintenance from the other or apply to a court for a property settlement dividing up property and superannuation (no matter whose name it is in) between you.

We recommend that you get legal advice to find out what your rights and obligations are as part of a de facto partnership.

There may be steps you can take to protect yourself – such as entering into a financial agreement with your partner – that only a qualified lawyer can assist you with.

 

Any queries?

If you have any queries about de facto relationships and how these are treated by the Family Law Act please get in touch.

We can advise you about how a de facto relationship may impact on your legal rights and obligations. To find out how our Family Law team can help you, call us now on 07 5597 3366 or complete the ‘Contact Us’ form below.

 

Please note that the above is general information only. It is not legal advice and should not be taken as such or relied upon.

 

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