De facto relationships and property.
Are you in a de facto relationship? Do you have a binding financial agreement setting out how your assets and financial resources will be divided should your relationship break down? Has your relationship broken down and you want to know how your assets and financial resources will be divided? This article sets out a brief overview of de facto relationships and the division of property either before or during the de facto relationship or once your relationship has broken down.
Are you in a de facto relationship?
Many couples assume they are in a de facto relationship once they have been in a relationship for some time. The law, however, sets out a specific definition of a de facto relationship. To be in a de facto relationship you need to meet the criteria set out in s4AA of the Family Law Act 1975 which defines a de facto relationship as follows:
- the persons are not legally married to each other;
- the persons are not related by family; and
- having regard to all the circumstances of their relationship, they have a relationship as a couple, living together on a domestic basis.
When looking at whether two persons are a couple, the Court will take into consideration:
- duration of the relationship;
- nature and extent of their common residence;
- whether a sexual relationship exists;
- degree of financial dependence or interdependence;
- ownership, use and acquisition of their property;
- degree of mutual commitment to a shared life;
- whether the relationship is or was registered;
- care and support of children;
- reputation and public aspects of the relationship.
What is a binding financial agreement and should I get one?
A binding financial agreement is a written agreement made between a couple either, before, during or after the breakdown of a de facto relationship, which sets out how their property or financial resources are to be divided in the event of the breakdown of the relationship. The agreement can also deal with the maintenance of either partner. The parties to the agreement must both obtain independent legal advice for a financial agreement to be binding.
If a de facto couple enter into a binding financial agreement, the couple cannot apply to the court for an order to divide their property in the event one party no longer wishes to comply with the agreement.
My de facto relationship has broken down and we didn’t have a financial agreement regarding our property. What do I do?
If you can agree with your de facto as to the division of property and financial resources you can enter into a biding financial agreement as set out above. You must both obtain independent legal advice.
If you cannot agree, you can apply to the Court for orders regarding the division of your property or for maintenance. You must first establish you were in a genuine de facto relationship and satisfy the court of one of the following:
- the de facto relationship is at least 2 years; or
- there is a child of the de facto relationship; or
- substantial contributions were made by a party to the relationship and it would cause serious injustice not to make the order; or
- the relationship was registered.
This article is for general information only and not legal advice. Legal advice should be obtained before taking any action or otherwise rely upon the content of this article in any way. This article was prepared on 28 March 2017 and has not been revised to account for any changes in the law since that time.