We see so many clients at Parry Coates Family Law asking the same question:
‘Am I in a de facto relationship?’
And we wouldn’t be a law firm if we didn’t answer this question with a ‘well it depends’. The answer is always not as clear cut as you would think.
People usually need to know whether they are in a defacto relationship because they are thinking about things like their estate planning (because if a partner dies leaving a defacto partner, and doesn’t provide anything to them in their Will, the surviving partner may have grounds to challenge the Will and still obtain payments from the deceased partner’s estate), or they want to adopt a child, or two females are in a same-sex relationship and one is pregnant.
But, being a specialist family law firm, our client’s usually come to see us because they need to know whether they are in a defacto relationship because of issues such as whether they can obtain a Protection Order, or they have recently separated, or thinking of separating, and want to know whether they would be required to negotiate a property settlement with their ex (or soon to be ex) partner.
What is a De Facto Relationship?
– FAMILY LAW ACT –
If we look at the definition in the Family Law Act, which now governs the issue of defacto relationship property settlements. It says a person is in a defacto relationship if they are:
1) not legally married; and
2) they are not related by family; and
3) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Now, clearly incestual couples won’t ever be eligible for a property settlement, so let’s clear the air on that. Jokes aside, you are probably now thinking, well what is a ‘genuine domestic basis’? and what are ‘all the circumstances’?
Fortunately, the Family Law Act gives us some answers, how long was the relationship, whether they lived together, whether it was a sexual relationship; whether there was any financial dependence by one partner; whether there’s any jointly owned property or children, and what evidence there is of a
mutual commitment to a shared life including the public communication of it.
But all of these raise their own questions, and no two de facto relationships are ever the same.
– WHAT THE COURTS SAY –
Our courts have determined couples to be in a de facto relationship where:
1) They don’t have sex, but share jointly owned property;
2) They have sex, one is financially dependent on the other, but there’s no evidence of a mutual commitment to a shared life;
Adding even more complexity to the issue, is even if a Court determines there is a defacto relationship, that doesn’t then mean that the parties are entitled to a property settlement. That is because the Court will only have jurisdiction if that defacto relationship was either:
1) At least 2 years in duration; or
2) There was a child of the relationship; or
3) There’s evidence that one party would suffer a serious injustice if the Court
didn’t make an Order.
So, again, the lawyer’s answer of ‘it depends’ rears its ugly head, because:
1) Two people could have a child together, but not be in a defacto relationship; or 2) Two people could be in a genuine defacto relationship for 18 months with jointly owned property, but still not be entitled to a property settlement because there’s no ‘serious injustice’ to either of them without a property settlement.
Protecting your interests & assets
In summary, it’s important to seek good family law advice from a specialist family lawyer if you think you are in a defacto relationship (at any stage of that relationship).
There are many things which can be put in place to protect your interests and property, such as:
a) A Financial Agreement, to define who gets what if you separate – really the only insurance policy you can get against the 60% odds you’ll need one;
b) Financial structures and ownership types of property;
c) Decisions with respect to living together, sharing income, giving gifts, social media posts etc.
Which of the above depends on your situation. Contact us today for a confidential, no obligation fixed fee initial appointment.
Defacto Relationships & Separation
However, let’s now assume that you’re in a defacto relationship. What then?
Well, it means that you and your ex will need to negotiate a property settlement (if you don’t have a financial agreement), and you have a two year time limitation to do so before you lose your right to get the Court to help get a property settlement.
If your ex is not engaging in negotiations, and there is equity in property which you have a right to, then the only person that can make an Order giving you that equity is a Judge. You do not want to lost that safeguard.
What is a property settlement?
It’s simply an Order or Agreement (in a formal legal manner) which says who will keep what of the property and superannuation (and potentially other types of assets) that you and your ex own either solely, jointly, or in equity. Just because your ex owned a home when you first started your relationship, does not mean you are not entitled to some of the equity in the home when you separate.
What am I entitled to in a de facto relationship?
That means, if your ex owns a home, the Court could order them to pay you cash equivalent to some or all of that equity. Or, you might be entitled to receive some of their superannuation to be transferred into your superannuation entitlements. It is not excluded simply because it was owned prior to your relationship.
Five (5) Step Process
In very basic terms, a lawyer and the Courts look at your personal situation to work out what you might be entitled to via a five step process:
1) Is it just and equitable, and/or does the Court have jurisdiction, to make an Order? If yes;
2) Establish what you and your ex own – whether in joint names, owned solely, or on trust or with any third party – by way of assets (house, property, cars, shares, business or trust interests), liabilities, superannuation and financial resources; then
3) Work out what types of contributions (financial, non-financial and parenting and homemaking contributions) you both made to property and the relationship. This will arrive at a general percentage range that you and your ex might be entitled to (50/50 or 60/40 etc); then
4) Work out what further adjustments might need to be made in light of income earning disparity, health issues, parent/caring arrangements etc. This will ‘adjust’ the percentage range established on the third step above; then
5) Work out whether the percentage division above is what the law considers ‘just and equitable’. There might be a further adjustment for this step. You might be entitled to 60% on point 3 above, but your ex might be entitled to 10% on point 4 above. Overall you might both be entitled to 50% of the total value of what is identified in point 2 above.
Exactly what you’re entitled to in a de facto relationship is only something which can be answered by a specialist family lawyer who can listen, understand and appreciate the individual nuances of your relationship.
Also the benefits of getting good expert legal advice is that there may be better ways to approach and look at your property settlement.