TGB's Dina Paspaliaris defines the de facto relationship and looks at how a de facto property settlement is determined.
TGB’s Dina Paspaliaris defines the de facto relationship and looks at how a de facto property settlement is determined.
I often have clients saying to me, “I have been living with my partner for three months, does that mean I am in a de facto relationship and are they are entitled to my assets?”
It is important to understand what a de facto relationship is and how your relationship could fall within the jurisdiction of the Family Court (or Federal Circuit Court) as it could be considered a de facto relationship.
Under Section 4AA of the Family Law Act a de facto relationship is defined as a couple, either of the same or opposite sex, having a relationship and living together “on a genuine domestic basis” who are not:
1. Legally married to each other; and
2. Related by family.
In determining whether the couple is living together on “a genuine domestic basis” the Court will consider the circumstances of the relationship of the parties and this will include :
1. The duration of their relationship;
2. The nature and extent of their common residence;
3. Whether a sexual relationship exists;
4. The degree of financial dependence or independence, and any arrangements for financial support, between them;
5. The ownership, use and acquisition of their property;
6. Their degree of mutual commitment to a shared life;
7. Whether the relationship has been registered, in a state or territory with laws for the registration of relationships;
8. The care and support of the children; and
9. The reputation and public aspects of their relationship.
The laws changed in South Australia on 1 July 2010 which gave de facto parties the same rights as married couples under the Family Law Act, with respect to a property settlement.
The criteria used by the Court to determine whether a party has a claim is as follows:
1. The parties must be living together for a period of at least two years; or
2. There is a child of a de facto relationship; or
3. One of the parties to the relationship has made substantial financial or non-financial contributions to their property or as a homemaker or parent and a serious injustice to that partner would result if an order was not made for adjustment of property settlement; or
4. The relationship is or was registered under a prescribed law of a State or Territory.
It is therefore important to obtain legal advice either before entering into a de facto relationship or at the end of the de facto relationship in order to protect your assets.