What’s My De Facto Partner Entitled To?

Written by: Adam Wightman | Legal Team

A De Facto relationship is a relationship where two people live together as a couple on a genuine domestic basis, however, they are not married.

The Family Law Act defines a De Facto relationship by reference to a series of criteria or relevant factors which guide the Family Court when determining whether a De Facto relationship exists or not.

What Is A De Facto Partner?

Not all of these criteria need to be met to establish a De Facto relationship, and the existence of one or more of the factors does not necessarily conclude that there is a De Facto relationship.  Instead, it acts as a guide to assist the Court in taking a holistic approach to determine whether a De Facto relationship exists or not.

The factors may summarised as follows:

• The nature and extent of the common residence: Here we are looking at whether the parties live together at the same residence, and how frequently this occurred.  For example, parties can be deemed to live together and share a common residence even though they do not live under the one roof all the time.  Relevant considerations are things such as the frequency and duration of residing at the residence whether the person has their possessions stored at the residence, and mail sent to the residence etc.
• Whether a sexual relationship exists: Here we are focused on whether the parties are physically intimate, and whether there is or has been an ongoing intimate relationship.
• The degree of financial dependence or interdependence and any arrangements for financial support between them: Here we are focused on the financial support that the parties provide to each other.  Does one party provide money to the other on a frequent basis, if so is it repayable?  Are there any shared bank accounts or credit cards?  Who pays for the mortgage/rent and the household bills?  Who pays for the groceries that each party consumes?
• The ownership, use and acquisition of their property: Here we are focused on things such as whether the parties own any real estate or other investments or substantial assets together, and if so, what were the circumstances surrounding their acquisition.  We are also focused on how the parties share the use of assets such as vehicles, real estate and businesses.
• The degree of mutual commitment to a shared life: Have there been discussions between the parties about them sharing their life together?  Have they made plans for their future together?
• The care and support of children: Do the parties have the care of any children together?  If so, what are their respective roles in caring for the children?  This can include both stepchildren and biological children.
• The reputations and public aspects of the relationship: Do the parties hold themselves out to others in their social circles as being in a serious committed relationship?  Do friends and family members view them as a serious De Facto couple?

In summary, the parties must essentially be sharing a life together and be living together on a genuine domestic basis.  A couple who are merely dating are not considered to be in a De Facto relationship.

The duration of the relationship is also an important factor.  In this regard, the parties need to be in a De Facto relationship for a period of at least two years or a total period of at least two years before one party can make a claim against the other in the Family Court for a financial settlement.  There are exceptions to this rule, which include circumstances where the parties have a child together.

Separation can be marked with lots of questions regarding who gets what and what happens with children, luckily, Canny Legal is here to help!  When Can My Child Decide Who They Live With?

What Differences Are There When Separating?

Provided the above two-year rule (or one of the exceptions) has been satisfied, then separating De Factor partners have the same rights to a family law property settlement against each other as separated married couples do.

However, if a De Facto partner wishes to apply to the Family Court to impose a family law settlement against the other partner (i.e. parties have not been able to agree on the terms of a settlement) then they must do so within two years from the date of separation.  In a contrast, married couples must make any application to the Court within 12 months of a divorce being granted (however, they must first wait 12 months from separation before they can apply for a divorce).

What Can They Take During Separation?

Married couples and De Facto couples essentially have the same rights and entitlements when it comes to family law property settlements, including rights to ongoing financial support such as spousal maintenance and child support.

Parties are first required to attempt to resolve their family law property settlement issues by way of negotiation out of Court (either through direct negotiation, with the assistance of mediators and/or with the assistance of family lawyers).  Provided it is fair, any agreement reached can be approved by the court as a binding Court Order (called Consent Orders).

Where agreement cannot be reached, then one party can make an application to the Family Court to impose a family law settlement against the other, provided it is done so within the above timelines.

When considering what a De Facto partner is entitled to pursuant to a family law property settlement, consideration is given to the length of the relationship, the financial and non-financial contributions that each party made to the total assets and liabilities held by the parties, and their respective needs into the future.  In this regard, the entitlements of a De Facto partner will be the same as if they married.

Can You Have a Prenuptial Agreement for De Facto Partners?

The only thing that can override the power of the Family Court to impose a family law property settlements on married and De Facto couples is a pre-nuptial agreements (known as a Binding Financial Agreement, or ‘Cohabitation Agreement’ for De Facto spouses).

Binding Financial Agreements/Cohabitation Agreements can be signed before or during a De Facto relationship and provide for how the assets and liabilities of the couple will be divided in the event that they separate in the future.  These agreements do not need to be fair, however, both parties must receive independent legal advice from their own lawyers before signing.

Want to know more about Prenuptial Agreements and what they should include?  Check out our previous article!  What To Include In Your Prenuptial Agreement

Expert Legal Advice with Canny Legal

Canny Legal has experienced family lawyers who can help you navigate a Family Law property settlement with your De Facto spouse.

They can also assist in preparing a Binding Financial Agreement/Cohabitation Agreement between you and your De Facto spouse to help prevent any disputes in the future, in the event of a separation.

Get in touch with our team and have Canny Legal in your corner.  We can help you can approach the hardships of Family Law with confidence knowing that you’re in safe hands.  Our lawyers are not only law experts but also in assisting their clients through tough legal times.