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Are you in a de facto relationship and don’t know it?

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The Family Law Act allows de facto couples to seek orders for property distribution in the Family Court.  The Act defines a “de facto relationship” as one which demonstrates “a couple living together on a genuine domestic basis.” This definition now includes same-sex couples.

In assessing whether a couple is living together on a “genuine domestic basis”, the Court will consider a range of factors and place weight according to the facts the Court sees to fit the circumstances. Some such factors 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
  • the care and support of children
  • the reputation and public aspects of the relationship

While this list is by no means exhaustive, the Court may choose to assess the validity of a de facto relationship based on any evidence it chooses, demonstrating the discretion given to Judges. This has legal consequences in terms of property and asset division in the instance of a break down of the relationship.

The case law indicates a growing trend by Courts to expand the definition of a “de facto relationship” and find its existence in circumstances which would traditionally not be found. For instance, de facto relationships have been legally recognised where partners have spent an average of three nights per week together over an extended period of time.

When should you be getting a financial agreement to protect your assets?

The Family Law Act makes provision for financial agreements entered into before, during or after a de facto relationship.  The Act effectively allows for any agreement the parties see fit to agree upon.

In order to avoid any uncertainties in the property division process in the event of breakdown of a relationship, a financial agreement should be entered into to protect one’s assets.

Our Family lawyers can answer your questions on a confidential basis.

Author:  Elisa Garzarella

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