Brisbane Family Law

Are you in a De Facto Relationship? Our Brisbane Family Lawyers explain the difference.

There can be a lot of unknowns as you try to approach family law. If you’re not married, you may be particularly confused as to whether you hold any rights under family law for assets and property previously shared with your former partner. Our Brisbane Family Law experts break down ‘De Facto’ relationships, and what legal rights individuals in a De Facto relationship may hold.

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Why is it important?

If you never tied the knot with a ring and separated after 1 March 2009, you will still have the same rights and responsibilities under the Family Law Act 1975 as a married couple have provided that at law you were in a de facto relationship that meets the requirements of the Act.

The importance of this is that your entitlements and considerations under that Act will apply in any negotiations with your former partner or if you find that you have to take a legal action, you may have your claim for settlement of property or arrangements for your children considered by the Family Court. Read on to find out from our Brisbane Family Law team what qualifies as a de facto relationship.

Legal Requirements for a De Facto relationship

You and your former partner:

  • Must not be married or related;
  • have or have had a relationship as a couple living together on a genuine domestic basis for at least 2 years (or a lesser period if there is a child of the de facto relationship; the party making a claim made substantial contributions to the relationship and serious injustice would be caused if Orders were not or the relationship is or was registered under certain State law); and
  • meet the residency requirements which you can read on our blog “De facto Relationships and bringing a claim under the Family Law Act 1975”.

Think it may apply to your situation? Our Brisbane Family Law team help break down these points further.

A couple living together on a genuine domestic basis

Some people may be surprised to find that the law will consider that they are in a de facto relationship. Still others may believe that they have a de facto relationship but later find that a Court does not take that view.

Factors that are considered when working out whether people are in a de facto relationship include:

  • the length of the relationship;

the nature and extent of their common residence. (Parties can be in a de facto relationship even though they do not live together in the same residence at all times. However, it may be less likely that there would be a finding of a common residence where the claimed common residence is not on the facts regarded as a party’s home; where a party does not have keys to the property claimed to be a common residence; where a party does not have the other party’s permission to use the property which is claimed to be a common residence to entertain his or her friends) and where the parties do not jointly host social occasions at the claimed residence);

  • whether there is a sexual relationship (It will not necessarily matter that the sexual relationship may not be exclusive or that a party may have sexual relations with other persons during the currency of the de facto relationship);
  • the degree of financial dependence or interdependence, including any arrangements for financial support between the people involved. (This factor may be regarded as neutral where a party of considerable wealth provides separate accommodation rent free and some financial support to the other party who claims to be in financial need and where that other party does not use any of his or her financial resources for joint endeavours);
  • how property is owned, used or acquired;
  • the extent to which there is a mutual commitment to a shared life;
  • whether the relationship is or was registered under prescribed law;
  • the care and support of children;
  • the reputation and public aspects of the relationship.

It is not necessary for all of these factors to be present before the law will regard that parties are in a de facto relationship. The circumstances of the particular relationship must be considered and no two relationships are the same. The following are given as examples only of how the Courts have considered some different relationships:

In the first example, a Court found that there was a de facto relationship where parties had cooperated in the management of property; shared a common residence, bedroom and business interests; each cared for a child of the relationship and were known in public as a couple.

In our second example, a de facto relationship was found to exist over the period when the parties had cohabited (though for less than 2 years); acquired joint property as well as a shared franchise business and shared holidays away together. The de facto relationship existed even though the de facto wife married a third party and for a time ceased sexual relations with the de facto husband.

In our third example, a Court found that there was no de facto relationship due to a number of factors including the clandestine nature of the relationship and that the parties both strived to ensure that they were not publicly identified as being together.

Our last example involved a man of considerable wealth who had provided financial support to the applicant and separate rent free accommodation. The Court refused to make a declaration that a de facto relationship existed. In that case, the parties had been in a relationship for about 5 years. No property was jointly owned by the parties and the parties did not have a common residence or any mutual commitment to a shared life.

The Court found that the respondent had made a commitment to an arrangement whereby he and the applicant enjoyed a sexual and social relationship and he financially supported her. On the evidence, the Court found that the applicant had a commitment to a life where she and the respondent would eventually live together once they were married. There was no mutual commitment between the parties; each party was committed to a different relationship.

Want to legal advice?

If you’re after more advice on de facto relationships, click here. For information on other services see our divorce law, separations, property settlement or child custody pages. If you’re looking for tailored legal advice, our Brisbane Family Law team are here to help. We offer free 15 minute phone consultations to help you get started in the right direction with your family law matter. Call us today.

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Practical Steps to Consider on Separation from our Divorce Lawyers Brisbane Team

Separation is generally a very difficult time for both you and your former partner. It is better to be prepared to the extent possible. Read on to learn about some of our practical steps to consider on a separation, compiled by our Divorce Lawyers Brisbane Team.

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Practical steps to consider post separation from our Divorce Lawyers Brisbane Team

The following are items are a number of recommended steps for you to consider from our experienced Divorce Lawyers Brisbane Team. However, some of these steps may not be appropriate in your particular circumstances. We recommend that you take legal advice in regards to what is best for you.

  1. Keep a note of the date of separation and communicate that you are separated to your former partner: This step is always important; the date of separation bears upon when you may file an Application for Divorce or for de facto couples, the date by which you must if necessary file an application in Court seeking Orders relating to property or maintenance.
  2. Secure children’s passports and birth certificates:   This will give you peace of mind where there is a risk that your former partner may try to take the children out of the country.
  3. Remain in the marital home: You do not lose your rights to property settlement if you do leave the home. Practically speaking, you may need to leave the home if domestic violence is involved and your partner will not leave. However, if this is not a factor, it may be better for you to remain in the home, particularly if the children are living with you and this is less disruptive for them.
  4. Counselling: Consider counseling for both you and your children.
  5. Ensuring that you have funds: Consider securing a sum of money from your own sources or joint sources to meet likely initial expenses that you will have, for example, any accommodation costs and the cost of obtaining legal advice.
  6. Protect your finances: Where your salary is credited to an account to which your former partner has access, consider redirecting your salary to an account which only you can access. If there is any redraw facility on a joint loan account or a joint line of credit, dependent on your circumstances, consider notifying the Bank that you require that any further draws are only made with the prior written consent of you both. If you are the primary holder of a credit card and your former partner is the secondary holder, consider also drawing sufficient funds on your loan account or line of credit before requiring joint authorities to do this so that you can pay out any outstanding balance on the credit card. Dependent upon your circumstances, you may also wish to consider cancelling the secondary card. It will be important to ensure that any jointly held investments may not be sold except with joint authority.
  7. Changing title registrations: Consider whether the title registration of any jointly held real property should be changed from a joint tenancy to a tenancy in common.
  8. Property held solely in the name of your former partner: There are measures which may be taken to protect your interests. You will generally wish to ensure that property is not sold or further encumbered before final agreement for division of property is reached. Contact our Divorce Lawyers Brisbane Team for advice regarding how this may be done.
  9. Changing passwords: You should also consider changing your internet banking passwords and your password for any investments held whether in your sole name or jointly (for example, unit trusts) or for access to information concerning your superannuation or insurance policies.
  10. Protect your data: Consider changing your password on your computer or other software and ensure that your documents are protected.
  11. Secure or take your important financial documents and medical records. Contact us for advice regards details of documents that you will need.
  12. Nominated beneficiaries: Consider any changes you wish to make to nominations made on your superannuation or insurance policies. You may have previously nominated your former partner as beneficiary of these policies in the event of your death.
  13. Obtain independent legal advice regarding family law matters: We recommend that this is done at an early stage. It will be important to ensure that you do not unwittingly prejudice your position. Our firm will try to settle client matters without going to Court. We do this through negotiation or attending mediation with you and the other party. Once there is agreement in principle, it is very important that that agreement is documented in a manner which is final and binding. This may be done by way of a Consent Order issued by the Court but without the need for you to attend at Court.
  14. Obtain other professional advice: Consider obtaining-
  15. financial advice from your accountant regarding tax obligations, including any outstanding tax obligations and any obligations that you may have as a director of any company that you and your former partner own or as a partner in any family business. Consider also obtaining financial planning advice, including regarding how it may be best for you to receive your property entitlement and how to then deal with those assets that you receive or retain.
  16. estate planning advice, including whether you should make another will (since separation does not revoke an existing will); make an Enduring Power of Attorney or revoke an existing one where your former partner is appointed attorney and will otherwise continue to have control over decisions regarding your health or financial affairs.
For more tips and advice regarding separation, click here. Or, contact our experienced divorce lawyers Brisbane team today for tailored legal advice.