If you were to ask a group of people if they knew what their rights were if their marriage as to end in divorce, some of them might be able to explain them to you, however, ask the same question about a de facto relationship then undoubtedly almost all of them would have to call their family lawyer at www.culshawmiller.com.au to get the answer.
The simple truth is that even those who are actually in a de facto relationship have very little awareness of what their rights are if the relationship should turn sour, so for them, and for anyone else who is unsure about what each individual’s rights are when a de facto ends, here are some guidelines.
First, it is important to know that in Australian family law, de facto relationships and the legal framework that applies to them is very similar to that which applies to marriages. This means that for the most part, anyone in a de facto relationship has more or less the same rights as someone in a marriage, albeit there are one or two slight variations.
What is important to understand is that to be considered to be in a de facto relationship, and therefore accrue the rights that apply, you must first be able to show that a de facto relationship actually existed. There is some confusion where people assume that simply because they live in the same house as someone and the relationship is sexual, that de facto rights apply. That is not the always the case.
Under the terms of the 1975 Family Law Act, for it to be considered a de facto relationship and have the rights that follow from that, you and your partner must be living together on what is termed a ‘genuine domestic basis’. What this means is that a couple needs to be in a relationship which to all intents and purposes would appear to a marriage.
This would mean that the living arrangements which the couple have might see them share the rent or mortgage and have joint names on any lease or proof of ownership, and they will also be sharing the household bills.
Should this couple separate, in order for the court to determine that they were in fact in a de facto relationship certain questions would need to be answered, and some facts established, such as:
- Length of the relationship?
- Are the couple in a sexual relationship?
- The level of their financial interdependence?
- Are there any joint assets?
- Do the couple have children?
- If so, do they share the support of and welfare of those children?
- Are the couple viewed as being ‘married’ or at least in a domestic arrangement by others?
If the majority of answers are yes, and the other facts are confirmed then the Family Court should rule that this is indeed a de facto relationship for the purposes of confirming each individual rights if they have separated.
Legally, no divorce takes place, unlike a marriage, however, the main matters that need to be agreed and settled such as a property settlement, the welfare of any children, and support payments, for example, are all treated in a similar fashion to a divorce.
Ideally, the Family Court would want the couple to come to an agreement on these and the other issues that need to be resolved via their respective family lawyers. However, if need be, the court will rule on them and issue orders in much the same way it would when a couple divorce.