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De Facto Relationships


A de facto relationship is defined as a close personal relationship between two adults whether related to one another or not, who are living together, one or each of whom gives domestic support and personal care.

A court will make orders if it is satisfied that:

1. The couple had a child together;
2. The couple lived together for at least two years;
3. The applicant made substantial domestic or property contributions or cared for the other party’s child and injustice would result if an order were not made.

Proof of a de facto relationship

There are many matters that a court will consider when determining whether a de facto relationship existed. The court will also consider the facts of each case:

1. The length of the relationship;
2. To what extent and under what arrangements the parties lived together;
3. Whether there was a sexual relationship;
4. The financial dependence or interdependence of the parties;
5. The acquisition, ownership and use of property;
6. The degree of commitment by both parties to a shared life;
7. The care and support of children;
8. The performance of household duties;
9. How other people saw the relationship.

Spousal Maintenance

A party to the relationship can make a claim for maintenance from the other if:

1. They are caring for a child of the relationship who is under the age of 12;
2. Their earning capacity was reduced as a consequence of the relationship and the party plans to undertake retraining for example so that they can join the workforce.

If an order for maintenance is made whether there is a child of the relationship that order will operate until the child reaches the age of twelve, at which time the order will end automatically.

If an order for maintenance is made where a party has lost employment skills, the order is effective for a period of up to three years after the conclusion of the hearing or four years after the conclusion of the relationship (the shorter period will apply).

If a party receiving maintenance marries, the maintenance order automatically ends. If the party receiving maintenance enters into a de facto relationship, the party paying the maintenance can apply to have the order set aside.

Child Maintenance

Child maintenance can be sought either via the Family Court or the child support agency.

Property

Property and financial resources of any nature will fall within the definition of property under the Act. This is so regardless of when the property was acquired or by whom. All property whether in individual or joint names will be considered.

A party has two years from the date of the end of the relationship to make a claim. Each party may have a different view of when the relationship ended.

Division of Property

The Court will consider the financial and non-financial contributions made by each party and divide the property in a manner that is just and equitable.

Non-financial contributions such as domestic chores and contributions to the welfare of the family are recognised by the court when considering a division of the property. It appears from the case law however that a greater adjustment will be made in favour of a party who has made non-financial contributions within the context of a marriage.

When distributing the assets of a married couple the court will not only consider past contributions but also future needs.

Although there are cases where the courts have made provision for the future needs of a party to a de facto relationship, it is overwhelmingly the case that the court will not consider the future needs of a party to a de facto relationship.

Agreements between de facto partners

Parties to a de facto relationship can make financial agreements. Financial agreements can be classified broadly into two categories:

1. Cohabitation agreements;
2. Separation agreements.

A cohabitation agreement can be made either before the relationship begins or at any time during the relationship. The agreement can cover matter such as:

1. Responsibility for expenses;
2. Classification of property owned by the parties as either joint or individual property;
3. The categorisation of property acquired during the relationship as either joint or individual;
4. Responsibility for debts;
5. Division of property and maintenance if the relationship ends.

Separation Agreements

Separation agreements are entered into in anticipation of, or at the conclusion of a de facto relationship.

These agreements can provide for the division of the parties’ property.

Children of a de facto relationship

Parenting orders may be sought in the Local Court, the Federal Magistrates Court or the Family Court. The principles that apply to the children of marriages also apply to the children of a de facto relationship.

Elizabeth Lane has many years experience working with the Family Lawyers Wollongong Prime Lawyers Wollongong.

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Listed: July 22, 2011 4:03 am