Are you concerned about what happens when a de facto relationship ends? When couples break up, you start to think about the financial contributions you each made to the relationship.
Could you be exposed to a claim against your property?
Should you be seeking a property split yourself?
What about financial support while you each go about re-establishing your lives apart?
What some people don’t realise is that de facto relationships and married couples are similar in how post-separation proceedings get handled. But, there’s a few differences in how de facto and married couples need to proceed when they separate.
What is a De Facto Relationship?
In the past you may have heard or read something that defined what is a de facto relationship. Two people living together for more than 3 months? Or is it more than 2 years? It’s not quite that simple.
The Family Law Act has a clear definition for what is a de facto relationship:
The law requires that you and your former partner, who may be of the same or opposite sex, had a relationship as a couple living together on a genuine domestic basis. However, your relationship is not a de facto relationship if you were legally married to one another or if you are related by family.
Where it gets murky is the part that says, “a relationship as a couple living together on a genuine domestic basis.”
What exactly does that mean?
Well, to determine if two people who are not married are in fact in a de facto relationship, the Court will consider:
- The duration of the relationship
- Whether the couple shared a residence, and how often
- Whether a sexual relationship existed
- Co-mingling of finances, for example joint bank accounts and shared expenses
- Sharing of property, for example purchasing a car that you both use
- Whether the relationship produced children, or provided for mutual care and support of children
- The public perception (e.g. friends and family) of the relationship
Every relationship is unique in some way, so all the above get taken into consideration. You could look at two different couples who have been together for the same period of time. One might be considered de facto by the Court because of other aspects of the relationship. The other, despite being the same duration, might not be considered de facto.
Proving a De Facto Relationship
With so many variable, you might be wondering how you can go about proving a de facto relationship. Establishing that a relationship was de facto is a crucial first step in any further post-separation proceedings.
A de facto relationship can get registered as a civil partnership with the relevant government authority. In Queensland, that is the Registry of Births, Deaths and Marriages.
If the relationship was not registered, there may be disagreement over whether a de facto relationship existed. A separate hearing may get held to resolve that that question before other separation matters can be dealt with. Having some evidence of the relationship will support your position. For example:
- Evidence of a significant financial contribution, such as providing a large sum of money for purchase of a property that you both live in.
- Utility bills and other expenses addressed to both of you.
- Declarations of your relationship status, such as Centrelink forms or tax returns.
- Birth certificates for children born from the relationship.
De Facto Entitlements After Separation
Once you can show that a de facto relationship existed, the question then becomes what are each person’s entitlements after separation?
Some people are surprised to learn that they or their former partner can make a claim for a property split or for spousal maintenance. But, it’s not the case that a de facto relationship automatically entitles someone to a share of property, such as a 50/50 split. The Court will still consider the same factors that influence a property or maintenance application as they would for a married couple.
It’s also important to know that in parenting matters, the law applies regardless of the type of relationship. Parents are parents, whether a de facto relationship existed or not. Matters of child custody and child support get dealt with separately to other concerns after separation.
What Should You Do?
By now you should understand what happens when a de facto relationship ends. The most important thing to consider after de facto separation is that time limits apply to any property or spousal maintenance claim.
For de facto couples, applications must be made within 2 years of the date of separation. So, once you have separated, for example by moving out of the shared resident and separating your finances, the clock starts ticking. But no time limit applies to parenting matters.
If you have separated, and you feel that you are entitled so some share of the property pool, you should seek legal advice immediately to begin that process. Likewise, if you are concerned that your former partner may file a claim for property or maintenance from you, then you should seek legal advice to understand your position.
