In Australia, the legal recognition of relationships extends beyond just marriages. De facto relationships, also known as common-law relationships, hold significant importance in the eyes of the law. Understanding the concept of a de facto relationship is crucial, as it determines the rights and responsibilities of individuals involved.
Here is a comprehensive overview of what constitutes a de facto relationship in Australia. Particularly focusing on New South Wales, and shed light on the rights and entitlements associated with such relationships.
The Family Law Act 1975, governs the recognition and regulation of de facto relationships and family law. This act outlines specific criteria to determine the existence of a de facto relationship. While the legislation offers a broad definition, it emphasises several key aspects, including the duration of the relationship, cohabitation, financial interdependence, and the presence of a shared life together. Usually the key factors as a starting point is;
The relevant section of section 4AA provides;
Meaning of de facto relationship
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Within the context of NSW, the Family Law Act applies, and additional considerations come into play. These can include whether the parties have registered their relationship under the Relationships Register Act 2010 or if there are children involved. The section states as follows;
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
A de facto relationship refers to a domestic relationship between two people who are not married but live together on a genuine domestic basis. The recognition of de facto relationships varies across Australian states, with specific legislation and guidelines in place to determine their existence.
In general, factors such as the length of the relationship, financial interdependence, and commitment are considered when establishing the existence of a de facto relationship.
It’s essential to differentiate between a de facto relationship and a casual boyfriend/girlfriend arrangement. Simply being in a dating relationship does not automatically qualify as a de facto relationship under Australian law. Factors such as the nature of the commitment, shared finances, and living arrangements are crucial in determining the legal recognition of a de facto relationship.
The family courts take several factors into consideration when determining whether a boyfriend or a girlfriend is really a de facto couple.
Married individuals who separate are required to wait a minimum of 12 months from the date of separation before filing for a Divorce Application. This waiting period is important because once a Divorce Order is granted, parties have 12 months from the date of the order to initiate proceedings for property settlement matters under the Family Law Act.
In practical terms, this means that married but separated individuals who choose not to divorce retain their right to apply for a property settlement in the family court. The time limit for such applications does not expire until after a Divorce Order has been made, regardless of whether the parties are successful in obtaining the desired orders.
De facto partners who separate have a 2-year period from the date of separation to initiate proceedings. However, disputes often arise regarding the exact date of separation, leading to more complex proceedings and additional costs for both parties. These disputes may involve proving the actual separation date or determining whether the proceedings fall within or outside the specified time limit.
De facto relationships in Australia enjoy legal recognition and come with certain rights and entitlements. These rights include financial matters such as property settlement, spousal maintenance, superannuation entitlements, and the ability to apply for a partner visa. Additionally, de facto partners may have legal obligations towards each other, such as financial support and inheritance rights. the rights are somewhat similar to married couples.
The rights and entitlements associated with de facto relationships can vary depending on the jurisdiction and the duration of the relationship. Seeking legal advice is highly recommended to ensure a comprehensive understanding of the specific rights and obligations applicable to a particular de facto relationship.
Understanding the concept of a de facto relationship in Australia, particularly in the context of NSW, is crucial for individuals involved in such relationships. The legal recognition and associated rights of de facto relationships can have a significant impact on matters such as property division, financial support, and immigration.
To register de facto relationships, the requirements vary between states. Accordingly, it is advisable to get in touch with the Birth, Deaths, and Marriages office in your state for guidance on this procedure. Our family lawyers can also provide assistance tailored to each state if you require further support.
Lyons Law Group offer comprehensive legal assistance and representation to help you navigate the complexities of a de facto relationship and safeguard your rights.
Seeking the guidance of a lawyer can provide you with a clear understanding of the legal implications, such as property rights, financial arrangements, and mutual responsibilities.
In the event of a separation, a lawyer can support you in negotiating and drafting a fair property settlement agreement that aligns with legal requirements.
Receive guidance on matters relating to parental responsibility, child support, and custody within a de facto relationship. Gain valuable insights into the best course of action to protect the best interests of any children involved.
Should any disputes arise, a lawyer can represent you and work towards resolving conflicts pertaining to property or financial matters through advocacy and legal expertise.
If you are in a defacto relationship or believe you are and require legal advice, call our divorce lawyers in Sydney. We will provide you with a first free consultation to review your situation.