De facto separations – The ins and outs.

If you’re leaving a de facto relationship, it’s important to seek legal advice quickly and work out what your rights are.  Important time limits apply and if you leave things too long, you might miss out and risk losing entitlements you may have had.

If you’re entering a de facto relationship declining to get married is not enough to protect you.  You might find yourself surrendering assets or hard-earned superannuation to your de facto partner even though the parties adhered to a ‘what’s mine is mine’ arrangement during the relationship.

If you and your partner both agree to keep your assets separate, you might want to consider entering in a binding financial agreement that can protect you if things go pear shaped down the track.  We can provide you with advice on how to enter into a binding financial agreement, or even practical advice on how to insulate yourself against possible future claims.

What is a de facto relationship?

De facto relationships are defined in section 4AA of the Family Law Act.  There are a number of factors which a court might consider when determining whether a de facto relationship exists.  Some of those factors are:

  • How long the parties were together.
  • The nature of their common residence.
  • Whether there was a sexual relationship.
  • Whether there was financial dependence.
  • How they owned and used property.
  • Whether there was a mutual commitment to a shared life.
  • Whether they had children.
  • Whether they represented themselves to the outside world as a couple.

For a court to make an order about de facto property matters, the period of the de facto relationship must have been at least two years.  If there are children or if substantial contributions were made during this short period, this rule can be circumvented.  You should seek legal advice if you’re unsure if you are in a de facto relationship.

Is a de facto partner a spouse?

Under the Family Law act, your de facto partner is treated in an almost identical way to a married spouse.  At the end of the relationship, you might still be liable or be entitled to spousal maintenance or a property split in your favour, just like a marriage.

What are the important time limits I need to think about?

You have until two years after the de facto relationship ended to finalise your de facto property or maintenance issues.  We strongly recommend doing something about it well before this time limit expires.  Difficulties may arise if the parties have different opinions about exactly when the relationship ended.  Perhaps the parties lived under the same roof for a while.  Perhaps a party filed a form with Centrelink months earlier.  Leaving things for over 12 months is a bad idea and advice about your de facto property matters should be sought as soon as possible.

How are de facto property splits worked out?

Your family lawyer will consider the property pool, the contributions you and your partner made during the relationship and any future needs you or your partner may have going forward.  In certain circumstances, they might be able to advice you on a potential ‘range.’ A range is what percentage of the property pool the court might award you if the matter were litigated.  Once you have this advice, you can use it to inform your position later on during negotiations.  You should seek legal advice to work out what you might be entitled to (it might be more than you’ve been led to believe).

What is a binding financial agreement?

A binding financial agreement is a special document prepared by your solicitor which says how you and your partners property will be divided when you separate.  It operates instead of the rules in the Family Law Act.  For many people, this is quite ideal, especially when they want to quarantine assets they built up before the beginning of the de facto relationship.

Because parties are effectively contracting out of the Family Law Act, the Family Court has been quite happy to overturn badly drafted agreements or where certain procedures were not followed properly.

It is for this reason it is very important you receive quality legal advice about your agreement and what steps are required and you ask your solicitor to make sure they tick all the boxes.

If you’re thinking of getting a binding financial agreement, call us for an initial consultation now.

De facto relationships and children?

Parenting matters are treated exactly the same for de facto relationships as they are for couples who are married.  The court treats the children’s best interests as paramount.  Like all parenting matters, it’s best to work things out in an amicable, sensible and mature fashion with your former partner, unless there’s concerns about domestic violence or child abuse.

Need advice now?

Cudmore Legal is on hand to deal with all of your de facto family law matters, before and after separation.  Book now for a free initial consultation!