In Australia, if you are in a de-facto relationship, you have the same rights as a married couple when it comes to the division of property. The same applies for same sex couples. You also have rights when it comes to maintenance, financial agreements and superannuation.
Simply living with someone and being in a sexual relationship with them does not in itself mean you are in a de-facto relationship.
Passing the first threshold – am I in a de-facto relationship?
Under the Family Law Act, you are in a de-facto relationship with your partner if you are not married but are living together as a couple on a genuine domestic basis.
What is a genuine domestic basis?
What genuine domestic basis means depends on the individual circumstances of each couple. Some of the questions the court will consider are:
- How long you have been in a relationship and whether it is of a sexual nature;
- How much financial dependence or independence exists between you or if you or your partner financially support one another;
- Whether you have joint assets;
- To what extent you have a mutual commitment to a shared life.
This is by no means an exhaustive list. If you are having trouble determining whether you and your partner are living together on a genuine domestic basis you should get legal advice.
More than one partner – Can someone be in more than one de-facto relationship at once?
Yes, the Family Law Act recognises that someone can be in more than one de-facto relationship at once. In fact, it also recognises that someone who is married can also be in a de-facto relationship.
Property Division – Can I get financial orders splitting property if we separate?
If you are in a genuine de-facto relationship then you can apply for property splitting orders if:
- You have been in the de-facto relationship for at least 2 years; or
- You and your partner have children; or
- Your relationship is registered under a prescribed law of a State or Territory; or
- When assessing property or custody claims, it is recognised that significant contributions were being made by either you or your partner and the failure of the court to issue an order would result in a serious injustice.
Superannuation – can superannuation be split?
Yes, superannuation held by each of you can be split either by agreement or by court order. Splitting superannuation is complicated and each superannuation fund has its own requirements that need to be fulfilled before they will implement a split. You should consult a lawyer for assistance with the process.
Ongoing financial support – can I get maintenance?
You can apply for maintenance from your partner if you cannot adequately support yourself. Whether such an application is successful will depend on your needs and your ex-partner’s capacity to pay. The following is considered:
- your age;
- your incomes, property, and financial resources;
- your ability to work;
- a suitable standard of living; and
- if the relationship has impacted on your ability to earn an income.
Ultimately, unless your partner is reasonably able to pay maintenance in circumstances where you are unable to support yourself, he/she will not be required to pay maintenance.
Under the Family Law Act, you and your partner can enter into a Financial Agreement (aka Pre-nup) to record your financial arrangement.
It can cover:
- Financial settlement if you break up;
- Maintenance if you break up;
- Any other relevant matters.
To be legally binding you both need to:
- Sign the agreement, and
- Get independent legal and financial advice about the agreement before signing it.
Financial Agreements can be very risky, particularly if you’re a young couple with children or who are planning to have children soon. We recommend getting legal advice on whether such an agreement is appropriate for you. Our family lawyers are practical and experienced with these sorts of agreements and will give you the right advice so you can make an informed decision before entering into a Financial Agreement.