Am I in a De Facto Relationship?

Clarity Lawyers Blog De Facto Couples

Understanding your legal status in a relationship is crucial. Under Australian family law, being in a de facto relationship can significantly impact your rights and responsibilities, especially regarding property settlement and financial agreements.

Knowing whether you and your partner qualify as a de facto couple can help you navigate your rights and obligations more effectively.

Here’s what our Newcastle family lawyers want you to know about de facto relationships.


Definition of a De Facto Relationship

In Australian family law, a de facto relationship is defined as a couple living together on a genuine domestic basis, although it’s possible for a de facto couple to not live together all the time. This means that even if you and your partner have separate residences, you might still be considered in a de facto relationship if other criteria are met.

Key criteria for a de facto relationship include:

  • Living together on a genuine domestic basis: This involves sharing a common life, even if you don’t live together full-time.
  • Duration of the relationship: Generally, a de facto relationship is considered if it has lasted for at least two years, but shorter durations can also qualify under certain circumstances – such as if you share a child together.
  • Financial dependence or interdependence: Sharing finances, joint bank accounts, or mutual financial support indicates a de facto relationship.
  • Mutual commitment to a shared life: Demonstrating a long-term commitment similar to that of a married couple.
  • You have had a child or children together: As we touched on above, having a child with a person you’re in a relationship with could qualify you as being de facto partners.

It’s also important to note, that just like married couples, it doesn’t matter whether you are in a same sex, heterosexual or binary relationship, you can still be considered to be de facto partners if you meet the above criteria.

By understanding these criteria, you can better assess whether a de facto relationship exists in your situation. If you have questions about your relationship status, it’s advisable to seek legal advice to clarify your position.


Factors Considered by the Family Court

When determining if a de facto relationship exists, the Family Court looks at several factors:

  • Nature and extent of common residence: Even if you don’t live together all the time, the court will examine how you share your living arrangements.
  • Length of the relationship: The duration plays a significant role, with relationships lasting more than two years generally meeting the criteria, though shorter relationships can also qualify under special circumstances.
  • Existence of a sexual relationship: While not essential, the presence of a sexual relationship is a factor.
  • Degree of financial dependence or interdependence: Shared expenses, joint accounts, and financial support are strong indicators.
  • Ownership, use, and acquisition of property: How you manage property together, including jointly owned assets.
  • Degree of mutual commitment to a shared life: Evidence of a committed relationship similar to marriage.
  • Care and support of children: If you have children together, this is a strong indicator of a de facto relationship.
  • Public aspects and reputation of the relationship: How you present your relationship to the public and your social circles.

The court assesses these factors collectively, meaning no single factor determines the existence of a de facto relationship. Understanding these factors can help you evaluate your relationship and seek appropriate legal advice if needed.

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Legal Rights and Responsibilities in a De Facto Relationship

Being in a de facto relationship under Australian family law grants you certain legal rights and responsibilities similar to those of married couples.

De facto couples have similar rights to property settlements as married couples, meaning that assets accumulated during the relationship can be divided between partners.

If you have children together, both partners share parental rights and responsibilities, just like in a marriage.

In certain circumstances, one de facto partner may be entitled to receive spousal maintenance from the other, depending on factors like financial need and capacity to pay.

Additionally, de facto partners can seek a division of superannuation entitlements during a property settlement.

Understanding these rights and responsibilities is crucial for de facto couples to ensure fair treatment and protection under the law. If you’re unsure about your rights, seeking legal advice from experienced family lawyers is recommended.


Differences Between De Facto Relationships and Marriage

While de facto relationships and marriages share many similarities in terms of legal rights and responsibilities, there are also important distinctions. One key difference is the process for dissolution.

Ending a de facto relationship does not require a formal divorce process through the Family Court, but you may still need to engage in property settlement and financial agreements, similar to married couples.

Additionally, the criteria for proving the existence of a de facto relationship are more nuanced. While marriage is a clear legal status, a de facto relationship requires demonstrating various factors, such as financial interdependence, mutual commitment, and the nature of the shared life. This can sometimes make legal proceedings more complex, as establishing the de facto status may require more evidence and documentation.

Despite these differences, both de facto relationships and marriages are recognised under the Family Law Act 1975, which means that both types of relationships are subject to similar legal protections and obligations.

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How to Protect Your Rights in a De Facto Relationship

Protecting your rights in a de facto relationship involves clear communication, documentation, and legal strategies. Here are some steps you can take to ensure your interests are safeguarded:

Clear Communication and Documentation

Maintain open communication with your partner about your financial and property arrangements. Document any significant financial transactions, contributions, and agreements you make together. This can include joint bank accounts, property purchases, and shared expenses.

Binding Financial Agreements

Consider creating a binding financial agreement with your de facto partner. This legal document outlines how your assets and finances will be managed and divided in the event of a relationship breakdown. Having a binding financial agreement in place can provide clarity and protection for both parties.

Seek Independent Legal Advice

It’s essential to seek legal advice from an experienced family lawyer to understand your rights and obligations in a de facto relationship. A lawyer can help you draft and review binding financial agreements, provide guidance on property settlements, and ensure that your interests are protected.

Keep Assets Separate

To protect your assets, consider keeping certain properties and finances separate from your joint assets. This can include maintaining individual bank accounts and investments that are not mingled with shared resources.

By taking these proactive steps, you can better protect your rights and interests in a de facto relationship. Understanding the legal framework and seeking professional advice are key to ensuring that you are prepared for any potential challenges.

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When to Seek Legal Advice

Knowing when to seek legal advice is crucial in a de facto relationship, especially when dealing with complex issues such as property settlements, financial agreements, and parental responsibilities.

If you are unsure whether your relationship qualifies as a de facto relationship, consulting with an experienced family lawyer can provide clarity.

Legal advice is also essential if you are considering entering into a binding financial agreement or if you need assistance with the division of assets and financial support following a relationship breakdown.

Additionally, seeking legal advice early can help you understand your rights and responsibilities, allowing you to make informed decisions and avoid potential disputes. A family lawyer can guide you through the legal processes, ensuring that your interests are protected and that you receive fair treatment under the law.


Need Help with Your De Facto Relationship?

Navigating the complexities of de facto relationships under Australian family law can be challenging. Understanding whether you are in a de facto relationship and knowing your legal rights and responsibilities is crucial for ensuring that you are protected.

At Clarity Lawyers, we specialise in family law matters and are dedicated to providing approachable and expert legal advice. If you have questions about your de facto relationship or need assistance with any related legal issues, our experienced team is here to help.

Book a consultation here or call us on (02) 4023 5553.

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Samantha Miller

Samantha has been a lawyer since 2001 having followed in the steps of her father, grandfather, great-grandfather and great-great-grandfather. No one can say she didn’t know what she was getting into!

Initially admitted in 2001 as a solicitor in NSW and Australia, Samantha moved to the UK where she was admitted as a solicitor in England and Wales in 2002. After working in several different areas of the law in large London firms, she determined that family law was her calling and hasn’t looked back.


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