In Australia, de facto couples have essentially the same legal rights in relation to parenting and property matters as married couples do.

Many clients believe they must be living with their partner for 2 years before they are considered to be in a de facto relationship. This is not correct.

What does the Family Law Act say?

For the purposes of the Family Law Act, 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.

A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

Working out if persons have a relationship as a couple

No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
Those circumstances may include any or all of the following:-

a)     the duration of the relationship;

b)     the nature and extent of their common residence (de facto relationships have been found to exist even when the parties do not live together)

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;

f)      the degree of mutual commitment to a shared life;

g)     whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

h)     the care and support of children;

i)      the reputation and public aspects of the relationship.

A de facto relationship can exist:-

a)     between 2 persons of different sexes; and

b)     between 2 persons of the same sex; and

c)     even if one of the persons is legally married to someone else or in another de facto relationship.

Financial Agreements for de facto couples

People in a de facto relationship (or contemplating entering one) can enter into a Financial Agreement (also known as a pre-nup) to set out how their property will be divided in the event of separation.

A Financial Agreement can provide for you to retain the assets and superannuation you had at the commencement of a relationship.

Without a Financial Agreement, your former de facto partner may be successful in an application for property settlement.

For more information about de facto relationships or any family law issue, call Berry Family Law on (03) 9399 7090.

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