What is a de-facto relationship?
A de facto relationship is an alternative relationship to marriage recognised by the Court under section 4AA of the Family Law Act (Cth).
A couple is recognised as being in a de facto relationship if:
- They are not legally married to each other;
- They are not related by family;
- They have a relationship as a couple living together on a genuine domestic basis.
Other factors that will assist in determining whether a de facto relationship exists include:
- The duration of the relationship;
- The nature and extent of their common residence;
- Whether a sexual relationship exists;
- The degree of financial dependence or interdependence, and any arrangements for financial support, between them;
- The ownership, use and acquisition of their property;
- The degree of mutual commitment to a shared life;
- Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
- The care and support of children; and
- The reputation and public aspects of the relationship.
How do I register my de-facto relationship?
Registering a de facto relationship allows the couple to have the same rights and protections under the law as married couples.
Step 1 – Restrictions on eligibility
A de facto relationship cannot be registered under the law if:
- Either party is the under the age of 18;
- Either party is married (to each other or to another third-person);
- In another registered relationship;
- In a relationship as a couple with another person; or
- If they are related by family.
Step 2 – Statutory Declaration
Both partners are required to make a statutory declaration stating that they:
- Want to register their relationship as de facto;
- Are in a relationship with each other;
- Are not married or related;
- Are not in another registered relationship; and
- Are or are not a resident of NSW.
Step 3 – Registration
There is approximately a 28-day turnaround period after the Application is submitted.
During this time, the Registrar will determine whether the relationship satisfies the requirements and eligibilities of a de facto couple.
If the Registrar approves of the relationship, the couple will be registered as a de facto couple, thereby granting them the same legal rights under the Family Law Act as married couples.
How does a de-facto relationship affect property?
If a de facto couple wishes to separate, the issue of the distribution of property arises.
Under the Family Law Act, de-facto couples share the same rights and obligations as married couples when it comes to the distribution of property.
De-facto couples are able to apply for ‘de facto property settlement’ given that they satisfy the following requirements:
- The de facto relationship has lasted for a minimum of two years;
- There is a child in the de facto relationship;
- Either party has made a substantial contribution to the property or finances of the other party;
- The relationship was registered under State or Territory law; and
- Either party was a NSW resident for at least one-third of their life.
The Court will determine how the property should be fairly and justly divided.
Factors affecting the distribution of property
Factors that the Court will take into consideration in the distribution of property includes:
- What each party owned before entering the relationship;
- The net value of all current assets;
- For example, real property, shares, and superannuation
- Contributions made by each party over the course of the relationship, including:
- Direct financial contributions;
- Indirect financial contributions;
- Non-financial contributions; and
- Your future needs.
The Court can make Orders to distribute the property in numerous ways.
- That the assets be sold and proceeds divided in a fair and just proportion;
- That the ownership of assets be transferred to/from a party to the other;
- That ongoing maintenance be paid; and/or
- That superannuation funds are split between the parties.