De facto relationships: children and property
What is a de facto relationship?
If you are with someone and you are not married to each other but living as a couple on a genuine domestic basis then, under the law, you are in a de facto relationship. The law also recognises that a de facto relationship can exist in same-sex relationships or when one of the parties is legally married to someone else or is in another de facto relationship.
Separating from a de facto partner
According to the Family Law Act 1975 (Cth), de facto couples have similar rights and obligations with respect children or property as married couples. This also means that disputes about the care of children or relating to 'who owns what', which can't be resolved amicably could end up in court for determination by a judge.
How long do I have to be in a de facto relationship for the law to apply?
This depends on the issue. For instance, there is no time requirement where there is a child of the relationship, or for the purpose of Child Support or Intervention Orders. Time requirements apply, however, for other areas of the law such as Migration (one year); property disputes under the Family Law Act (two years); disputes about Wills (three years); and adoption laws (five years).
Resolving disputes
When disputes arise with respect to children and/or property, which can’t be resolved by negotiation, ex-de facto partners can apply to the court for determination. Applications to the court in relation to children can be made anytime, while an application relating to property must be made within two years of the breakdown of the relationship. After that time an application for a property settlement can only be made with the consent of the parties or with permission from the court.
To determine if a defacto relationship exists, the court will look at the following circumstances:
- duration and level of mutual commitment to the relationship
- whether there is a sexual relationship between the parties and a common residence
- care and support of children
- financial involvement and ownership of property
- reputation and public aspects of the relationship
- whether the relationship is registered under a State law.
If you are or were in a defacto relationship and want to know more about your entitlements call us on 0477 269867 or email info@cifuenteslaw.com to book a free consultation.
