Most couples start a relationship reluctant to consider the prospect of marriage, let alone the implications of a breakup. However, with around 80 per cent of couples living together before marriage, de facto relationships are increasingly common in Australia. They are also most likely to end in separation.
Let’s face it. Relationships can be messy at the best of times. Can you be in a de facto relationship while married? What if there are children involved? Do you both agree on when your relationship started and ended?
It’s important to know the legal implications of a de facto relationship. If you’re in the process of separation, understanding your rights and responsibilities could make the difference between a lengthy mediation and a straightforward resolution.
What is A De Facto Relationship?
Australian law defines a de facto relationship as a couple living together on a genuine domestic basis. The Family Law Act 1975 recognises:
- Opposite sex or same-sex couples
- A married person who is in a de facto relationship with another person they’re not married to
- Being in more than one de facto relationship at the same time
There’s no simple definition of a de facto relationship. Whatever your unique family situation, Rockwell Family Law is here to provide fair and sensitive solutions. We can advise you on your circumstances and help you navigate the separation process with empathy and discretion.
Is a Boyfriend or Girlfriend a De Facto Relationship?
To work out if your boyfriend or girlfriend is legally considered a de facto relationship, here are the main guidelines:
- If you’ve been living together for over two years
- If you have shared financial debts or joint bank accounts
- Whether you’re both committed to future plans
- If the relationship is sexual
- If you’ve had children together
- Whether one of you is financially dependent on the other
- If you’ve shared a home or bought property together
- Whether your public image is perceived as a couple
While these are the most relevant aspects, not all of them need apply. When it comes to family law, your particular situation and any other factors that might affect you are taken into consideration. For example, if you live for periods apart due to business travel.
Do You Have To Register a De Facto Relationship in Australia?
As a de facto couple, you can access similar rights and entitlements to married couples. It’s not a legal requirement to formally register a de facto relationship. In the absence of registration, the guidelines mentioned above will help to determine the nature of your relationship and your rights and responsibilities accordingly.
Reasons to Register a De Facto Relationship
In the event of a dispute between parties, how to prove your de facto relationship status may become an issue. While most couples can resolve their situation amicably, there can be disagreement regarding when a relationship began or ended. By formally registering your de facto relationship, you’re assured it will be legally recognised without any need to provide evidence.
A relationship certificate is a state government document that you can use for various purposes such as inheritance, tax or superannuation benefits. For example, in the event of a partner’s demise without a will, a relationship certificate ensures de facto relationship entitlements after death. Without it, you may have to provide proof of your relationship to make a claim.
For those with significant assets in a de facto relationship, a Prenup or Binding Financial Agreement (BFA) can provide lasting peace of mind. The BFA formalises the division of your joint assets and liabilities in the event of a relationship breakdown. At Rockwell Law, our specialist team of family lawyers can help tailor a BFA for your needs.
De Facto Relationship Property Rights
When a de facto relationship ends, assets will need to be divided between both parties. De facto relationship breakup entitlements can extend, for example, to property, vehicles, business interests, shares, insurance policies or superannuation. Assets obtained before the relationship started are included in the property settlement entitlements.
It’s vital to obtain independent legal advice as soon as possible after separation. With our experience and understanding of family law, we can guide you through this stressful time with the best legal representation.
Protecting Assets in a De Facto Relationship
While estate planning is important for everyone, it takes on special meaning for high-net-worth individuals. A de facto relationship has serious implications for your estate. It’s essential to review your estate planning so you can safeguard your existing dependants’ financial security.
The issue of how to protect your assets from a de facto relationship breakdown can be resolved with our expert advice. Our estate planning team takes into account your future goals to secure your assets in circumstances as varied as relationship breakdown or personal injury.
What are The Disadvantages of a De Facto Relationship?
The main drawback to de facto relationships is the evidence required if a dispute needs to be settled through court. How to prove a de facto relationship may seem simple, but it’s less straightforward if parties disagree on the length or expectations of their relationship. Without a relationship certificate, the court must confirm the relationship existed before it can proceed with property settlement.
The uncertainty of a court outcome can be emotionally and financially stressful. De facto parties who separate have two years to make a claim. Disputes can occur about when the separation began, which impacts the timeframe for initiating legal proceedings.
Is a De Facto Relationship Legally Binding?
De facto relationships are recognised under family law. In the event of a relationship breakdown, you can apply to court for property settlement or child maintenance.
If your relationship has not been formally registered, the court will need evidence to prove the existence of the relationship.
A practical option for de facto couples is to enter into a Prenup or Binding Financial Agreement (BFA). By signing a BFA, a couple chooses to waive their rights under family law to apply for a court order should their relationship end. You can enter into a BFA at any point in your de facto relationship, including after the relationship breakdown.
Compared to the emotional and financial stress of going to court, BFAs are a cost-effective solution. We can provide the specialised family law advice you need to achieve a fair and just outcome for you and your partner.
How Do I Register for a De Facto Relationship in Victoria?
You can register your de facto relationship in Victoria with the state agency, Births, Deaths and Marriages Victoria. For the purposes of Victorian state registration, a de facto relationship is referred to as a domestic relationship under the Relationships Act 2008.
Both opposite sex and same-sex couples can apply to register their relationship. The turnaround time for registration is 28 days to allow for a cooling-off period.
For More Legal Advice Regarding Prenuptial Agreements, Property Settlements or other Family Law Matters, Contact us at Rockwell Family Law
You’ve worked hard to achieve your goals so it’s worth the investment to protect your future income or estate. Any perceived disadvantages of de facto relationships can be overcome with insightful planning and sensitive legal advice. Our team can support your long-term vision for your financial security and peace of mind. Book a Rockwell Family Law consultation to discuss your family law matters today.