A de facto relationship is a relationship in which a couple lives together on a genuine domestic basis. This definition is the same across Queensland, New South Wales, Victoria, Northern Territory, South Australia, Western Australia, Tasmania, and the Australian Capital Territory.
The definition of de facto relationships includes couples who are same-sex or opposite sex. A couple who are married or who are related by family cannot be considered to be in a de facto relationship. However, if a person is legally married and has re-partnered can still be considered to be in a de facto relationship with another person they are not married to.
The length of time to be considered de facto is two years. However, if there are children or substantial contributions to joint property, exceptions are made to this rule. De facto relationships are governed under the Family Law Act 1975. This means that your rights regarding property settlement, child maintenance and separation are dealt with under the Family Law Act 1975. De facto relationships in Western Australia are governed by the Family Law Act 1997 (WA).
Meaning of de facto relationship
Because the definition of de facto depends on the particular circumstances of a relationship, the law has formulated a set of factors that are used to determine whether a couple are, or were in a de facto relationship. These factors include:
- Whether the couple are married;
- How long the couple has been together and in a relationship;
- Whether the relationship was sexual in nature;
- Financial dependency;
- The degree of a mutual commitment to a shared life, such a plans to marry;
- Whether the relationship is registered in an Australian state or territory;
- Property ownership and use;
- Care and support of children;
- The public aspects of the relationship, such as reputation.
Each case is examined individually and the specific circumstances of the relationship taken into consideration. You can also be considered to be in more than one de facto relationship at a time. The Family Law Act 1975 specifically acknowledges that a person can be in a de facto relationship regardless if they are in another de facto relationship. Meaning that a de facto relationship does not need to be mutually exclusive.
Breakdown of a de facto relationship
Upon the breakdown of a de facto relationship, there are a few ways to sort out how to divide property:
- By agreement without court involvement;
- Through an agreement formalised by the court through an application for Consent Orders; or
- By applying to the court for orders.
The courts can make an order for the division of any property that you own together or separately, this includes a split of any superannuation, or that one party pay spousal maintenance.
The net asset pool will include anything acquired before, during, or after separation and is valued at the time of settlement, not separation. It does not matter whether the property was owned jointly or individually.
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