Table of Contents
- What is a De Facto Relationship?
- Does a Binding Financial Agreement Protect from a De Facto Relationship?
- Can You Get Spousal Maintenance from a De Factor Relationship?
- How to Register De Facto Relationship NSW
De facto relationships have gained significant recognition and legal standing in Australia. Here we will examine both the disadvantages and advantages of a De Facto Relationship in Australia.
What is a De Facto Relationship?
A de facto relationship refers to a domestic partnership between two individuals who live together on a genuine domestic basis, without being legally married or in a registered civil partnership. While de facto relationships offer many benefits and protections, they also come with certain disadvantages that individuals should be aware of.
De Facto Break Up Entitlements Australia
If a de facto relationship exists and can be proved in court, there may be certain entitlements that may be a disadvantage to some couples.
Duration of the Relationship
The length of the de facto relationship plays a significant role in determining entitlements upon breakup. Generally, a de facto relationship is considered to have commenced when the parties started living together on a genuine domestic basis. The duration of the relationship is a crucial factor in property division and financial settlements.
Property Settlement
In Australia, de facto couples have the right to seek a property settlement similar to married couples. The Family Law Act 1975 covers the division of property for de facto relationships at the federal level. This means that property, assets, and liabilities acquired during the de facto relationship may be subject to division upon separation.
Financial contributions and future needs
When considering property settlements, the financial contributions made by each partner during the relationship are taken into account. This includes both financial contributions (such as income, savings, and investments) and non-financial contributions (such as homemaking and caring for children). Future needs, including the income, earning capacity, age, health, and care responsibilities of each party, are also considered in determining a fair division of property.
Children and Parenting Arrangements
If the de facto couple has children, the breakup may involve considerations of child custody, visitation rights, and child support. The best interests of the children are the primary concern in making decisions regarding parenting arrangements. The Family Law Act provides guidelines for determining child-related matters in de facto relationships.
Time limits for property settlement
There are time limits for initiating property settlement proceedings following the breakdown of a de facto relationship. In most cases, an application for property settlement must be made within two years of the date of separation. Failing to initiate proceedings within the specified time frame may limit or extinguish the entitlement to seek a property settlement.
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Does a Binding Financial Agreement Protect from a De Facto Relationship?
Yes, a binding financial agreement, also known as a “pre-nup” or “cohabitation agreement,” can provide protection in the event of a de facto relationship breakdown in Australia. A binding financial agreement is a legally enforceable contract that allows de facto couples to document their financial arrangements and property division preferences.
Here’s a number of ways how a binding financial agreement can offer protection:
Clarity and certainty
By entering into a binding financial agreement, the de facto couple can establish clear guidelines regarding the division of property, assets, and liabilities in the event of a breakup. It provides both parties with certainty about their rights and obligations, minimising the potential for disputes and lengthy legal proceedings in the family court.
Property settlement
The agreement can outline how the property acquired before and during the de facto relationship will be divided upon separation. It can specify the percentage or specific assets each party is entitled to, taking into account their financial contributions and other relevant factors. This allows for a more streamlined and efficient property settlement process.
Financial matters
A binding financial agreement can address financial matters such as debts, mortgages, and ongoing financial support. It can outline how these matters will be managed and allocated between the parties upon the end of the de facto relationship.
Protection of assets
If one or both of the de facto partners have significant assets or businesses that they wish to protect, a binding financial agreement can be particularly valuable. It can include provisions to safeguard specific assets from being subject to division in the event of a breakup.
Legal enforcement
Provided that the agreement meets the legal requirements, such as being in writing, signed by both parties, and obtained with independent legal advice, a binding financial agreement is legally binding and enforceable by the courts. This means that the terms outlined in the agreement can be upheld and enforced, providing a level of protection to the parties involved.
A binding financial agreement must be carefully drafted, and both parties should seek independent legal advice from their family lawyers in Sydney before signing. Additionally, the agreement should be regularly reviewed and updated to reflect any significant changes in circumstances, such as the birth of children or acquisition of new assets.
While a binding financial agreement can offer protection, it is still advisable to be aware of the relevant laws and regulations surrounding de facto relationships in your jurisdiction. Consulting with a family lawyer will ensure that you fully understand your rights and responsibilities in a de facto relationship and can make informed decisions about entering into a binding financial agreement.
Can You Get Spousal Maintenance from a De Factor Relationship?
Yes, it is possible to receive spousal maintenance from a de facto relationship in Australia. Spousal maintenance refers to financial support provided by one partner to the other following the breakdown of a relationship, to assist with their reasonable expenses and living needs. However, the availability and extent of spousal maintenance in de facto relationships can vary depending on various factors, including the jurisdiction in which the relationship is recognised.
Here are some key points to consider regarding spousal maintenance in de facto relationships in Australia:
- Eligibility criteria: To be eligible for spousal maintenance, certain criteria must generally be met. These criteria typically include factors such as the length of the de facto relationship, financial disparity between the parties, income and earning capacity, financial needs, and responsibilities for caring for children.
- Jurisdictional differences: The laws surrounding spousal maintenance in de facto relationships can differ between states and territories in Australia. While some jurisdictions have specific legislation addressing spousal maintenance in de facto relationships, others may rely on general principles of equity and fairness to determine eligibility and entitlements.
- Length of the relationship: The duration of the de facto relationship can influence spousal maintenance entitlements. In some jurisdictions, a minimum period of cohabitation or a specific duration of the relationship may be required to qualify for spousal maintenance.
- Financial needs and capacity: The financial needs of the party seeking spousal maintenance and the financial capacity of the other party are crucial considerations. The court will assess factors such as income, assets, debts, and living expenses to determine whether spousal maintenance is necessary and feasible.
- Child-related considerations: If there are children from the de facto relationship, their care and financial support are prioritised. In some cases, spousal maintenance may be awarded to assist the custodial parent in meeting the needs of the children.
- Court discretion: Spousal maintenance decisions in de facto relationships are typically made by the courts based on the specific circumstances of the case. The court has discretionary powers to determine the amount and duration of spousal maintenance, taking into account various factors, including the financial resources and needs of each party.
How to Register De Facto Relationship NSW
The relationship register in NSW offers official acknowledgement for adult couples in a relationship, as long as at least one of them resides in NSW.
If you and your partner wish to formalise your relationship, you have the option to register online.
Applying for registration incurs fees, which differ based on your preference for a relationship ceremony and/or commemorative certificates. The registration can be done at Service NSW website.
If you are in an de facto relationship and require advice, contact our team at Lyons Law Group for a first free consultation over the phone.
