Many people are surprised to learn that de facto couples in NSW have significant legal rights that are similar — in many respects — to those of married couples. However, those rights only arise if your relationship meets the legal definition of a de facto relationship, and they must be exercised within strict time limits. Here is what you need to know.
What Is a De Facto Relationship?
Under the Family Law Act 1975, a de facto relationship exists between two people who are not married to each other and not related by family, but who live together on a genuine domestic basis. In determining whether a de facto relationship exists, a court will consider:
- The duration of the relationship
- Whether the couple lived together and, if so, for how long
- Whether there is a sexual relationship
- The degree of financial dependence or interdependence
- Whether the relationship was registered (some states allow registration)
- The care and support of children
- The reputation and public aspects of the relationship
Generally, a de facto relationship must have existed for at least two years before property settlement rights arise — unless there is a child of the relationship, or one partner made significant contributions.
Property Settlement Rights
On the breakdown of a de facto relationship, both parties have the right to apply for a property settlement under the Family Law Act. The process is the same as for married couples — the court considers the asset pool, contributions of both parties (financial and non-financial), and future needs. There is no automatic 50/50 split.
The critical time limit: property settlement proceedings must be commenced within two years of the relationship ending. After that, you need the court's permission to proceed.
Superannuation Splitting
As with married couples, de facto partners can split superannuation as part of a property settlement. This is done through a superannuation splitting order and requires the involvement of the relevant superannuation fund.
Spousal Maintenance
A de facto partner may be entitled to maintenance from the other partner if they cannot adequately support themselves. This applies where one partner is caring for children, has health issues affecting their ability to work, or has significantly lower income or earning capacity.
Parenting Rights
Parenting rights in de facto relationships are identical to those in marriages. Both parents have parental responsibility regardless of marital status, and all parenting matters are determined based on the best interests of the child.
Inheritance and Estate Matters
A de facto partner may be eligible to make a Family Provision Claim against a deceased partner's estate if not adequately provided for. However, this depends on establishing the de facto relationship to the court's satisfaction.
Binding Financial Agreements
De facto couples can enter into a Binding Financial Agreement (BFA) before, during, or after their relationship — just like married couples. A BFA sets out how property will be divided if the relationship ends and can provide certainty for both parties.
At James Papas Solicitors, Shanthi Anandarajah advises on all aspects of de facto relationship law. Consultations are available in English and Tamil. Your first consultation is free. Call (02) 9633 3122.
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