De facto relationships
Overview
De facto relationships have similar rights and responsibilities as marriage. When a de facto relationship ends, there are certain legal obligations for the division of property and the care of children. At VRT Lawyers, our experience in the area of de facto relationships is extensive. We can guide you through the process of ending a de facto relationship, and our aim is to make it as easy as possible for you.
What is a de facto relationship?
According to the Family Law Act of 1975, a de facto relationship consists of two people who are not related living together in a genuine domestic relationship. This applies equally to opposite sex or same sex couples. The relationship must be for at least 2 years or if there is a child of the relationship and failure to make an order would result in serious injustice to the partner caring or responsible for the child.
How do I separate from a de facto relationship?
When separation takes place, it’s important to get the date of separation in writing. This is best done via electronic means such as an email or text message so that the date of separation can be verified should a dispute arise.
Separation may occur while you are both still living under the same roof. When the court is determining if a separation has taken place, it will consider things such as:
- Your domestic arrangements and whether you still perform domestic duties for each other
- Whether you share finances
- Your sleeping arrangements
- Whether you have informed government agencies such as the ATO and Centrelink of a change in your relationship status
- Whether your decision to separate has been made known to family and friends
- Whether you and your partner have been intimate after the date that you claim to have separated
Property adjustment and maintenance orders
A property adjustment order is made by the court to divide up assets and debts after the breakdown of a de facto relationship. Each case is different and the court takes into account:
- The value of your assets and any debts that you owe
- The value of any assets you each took into the relationship and your contribution to their maintenance or upkeep of those assets
- The length of the relationship
- The value of financial contributions you each made to the relationship, such as wage or salary earnings
- Any indirect financial contributions you made to the relationship such as inheritances or gifts from family members
- The non-financial contributions one of you may have made such as caring for children or performing home duties
- The future financial prospects of each person, such as earning ability, age and health, the need to care for children or elderly relatives, and any financial resources you have currently
A maintenance order is made by the court when it considers that one partner is unable to adequately support themselves financially. Under this type of order, one partner is required to pay a regular sum of money to the other as financial support, usually for a specified period of time. When you make an application for maintenance, the court will consider:
- Your earning ability
- Whether you have commitments that restrict your earning ability, such as the care of children from the relationship
- The ability of your former partner to support you
What if is there is an AVO?
When a person consents to being placed under an AVO, there is usually no need for the matter to go to court. Under this order:
- There is no legally binding admission of wrongdoing
- Both parties may continue to live under the same roof if they choose
- Protection is put in place should domestic violence occur
How family violence affects parental rights
Parents do not have rights, rather it’s the right of the child to have a meaningful relationship with both parents, except where is it not safe to do so. The law has recently changed in relation to parental responsibility where there was previously a presumption in favour of equal shared parental responsibility, this has now changed to remove that presumption and the onus is on each parent to satisfy the Court why that parent ought to have parental responsibility, be it equal shared with the other parent or sole responsibility. When you separate, you can agree to parenting arrangements and avoid going to court. If you are unable to agree you must:
- Attend family dispute resolution
- Make reasonable efforts to communicate with each other
Your case cannot go to court until you can show that you have met these conditions. There are several ways that parenting arrangements can be made. They include:
- An informal agreement, where you decide between the two of you what will work best. Informal agreements are not binding, but a court may consider them when making arrangements for the payment of child support or the division of property.
- A parenting plan which is set out in writing and dated. It is not legally binding, but a court may take it into account should a dispute arise over parenting matters.
- Parenting Consent Orders, which is usually negotiated with the help of mediation services. Consent Orders are legally binding and can be enforced by a court.
- A parenting order, where the court makes all the major decisions, such as child care and living arrangements, access arrangements, how parents will communicate over parenting matters and how disputes will be resolved.
Is there a time limit to go to court?
When you are unable to reach an agreement on financial or parenting matters, you may apply to go to court to have the issues settled. You must do this within two years after the end of your relationship.
Registering your de facto relationship
You may register your de facto relationship with the Services NSW. This is legal recognition of your relationship status that will be accepted by service providers and government agencies. You must fulfil certain conditions such as not being in a registered relationship with someone else, not being married, and being over the age of 18. If your relationship ends, you can apply to Services NSW to have the registration revoked.
How we can help you
At VRT Lawyers, we understand that the end of a relationship is often a difficult and emotional time. You may be feeling uncertain about what to do next or wondering how to resolve your situation. We can guide you through your legal requirements, inform you of your rights and obligations, and support you as you make decisions. Our team will treat you with compassion and professional integrity.
If you would like to know more, please call us on (02) 9264 7244.
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Our team of dedicated family law specialists have years of experience helping clients navigate complex legal matters.