De facto relationships offer legal recognition to couples outside of marriage. While de facto relationships are similar to marriages, there are differences. This article will explore those differences, the rights of de facto relationships and obligations during and after the relationship.
What Is a De Facto Relationship?
A de facto relationship refers to a relationship between two adults who live as a couple but are not married to each other. Under the Family Law Act 1975, de facto relationships are recognised and given many of the same legal rights and obligations as married couples. This recognition extends to opposite-sex as well as same-sex couples.
De Facto Relationship Vs Marriage
De facto relationships are treated similarly to marriages. However, there are some differences.
Proving the relationship’s existence
Marriages are straightforward to prove as you require a marriage certificate to be legally married. De facto relationships can be less clear as there’s no requirement to register it formally.
The Family Court considers several factors to determine if a de facto relationship exists. The couple must have a relationship as a couple living together on a genuine domestic basis. Several elements go into determining this, including but not limited to:
- The duration of the relationship;
- The nature and extent of their common residence;
- Whether a sexual relationship exists;
- The degree of financial dependence or interdependence and any arrangements for financial support between them;
- The ownership, use, and acquisition of their property;
- The degree of mutual commitment to a shared life;
- Whether it was a registered relationship under a prescribed law of a State or Territory;
- The care and support of children.
Often, no one factor will establish if a de facto relationship existed.
Ending a relationship
Relationship breaks are simpler for de facto couples. There’s no formal process for separating from your de facto partner. Deciding privately to split up is enough. Married couples must follow the divorce process after a prescribed separation period.
Estate planning
Usually, getting married automatically invalidates any existing will. The law assumes that your spouse will become a beneficiary of your estate. Couples can get around this by adding a clause in their will stating it was created “in contemplation of marriage”.
A de facto relationship doesn’t end an existing will. However, de facto partners have the same rights as a spouse if the other partner dies intestate (without a will). The deceased person’s estate will pass to the surviving party in this event.
If you’re looking for an experienced lawyer for family law matters, contact Ferrall & Co. Lawyers for a free 30-minute consultation.
Registering a De Facto Relationship
Couples may register their relationship as a civil partnership in Queensland. This makes it easier to prove the relationship’s legal validity. The couple must submit an application with three forms of ID. There is a filing fee of $159.
There are several requirements to be eligible for a civil partnership:
- You cannot be married or in a current civil partnership;
- Both parties must be over 18;
- At least one partner must reside in Queensland;
- Documents must be in English or have an accredited translation;
- Both parties must read the legal effects of a civil partnership.
You may register your partnership with or without a declaration ceremony. However, a 10-day cooling-off period will apply if you don’t have a declaration ceremony.
After the Relationship Ends
If a de facto relationship ends, the parties have rights and responsibilities similar to those of married couples. Arrangements must be made for any children and assets. A de facto couple can handle parenting matters through consent orders or a private agreement.
De facto parties may organise a property settlement through a financial agreement or consent orders. Before applying for orders, the couple must satisfy the Court that their relationship is legally recognisable. Under the Family Law Act, this means:
- The relationship lasted for at least two years; or
- There is a child or children of the relationship; or
- A party has made substantial financial or non-financial contributions to the other person’s property; or
- A serious injustice would be caused if the property was not divided; or
- The de facto relationship was registered in a state or territory of Australia.
De facto couples must settle property matters within two years of a relationship break.
Conclusion
Understanding your rights and obligations during and after a de facto relationship is crucial. While there are similarities to a marriage, there are also differences. De facto relationships can be challenging to establish unless registered and have implications for matters such as estate planning.
Our team is available to assist with any questions or concerns about your de facto relationship.
