Ending A De Facto Relationship Explained
Even though de facto couples aren’t legally married, they have a similar status under the Family Law Act 1975. While de facto couples don’t divorce, they have the same obligations over children and property matters as married couples. Like married couples, they can settle such matters privately or through the Family Court.
- A de facto relationship exists if a couple lives together on a genuine domestic basis.
- De facto couples can divide property through a financial agreement or a property consent order.
- De facto couples can organise parenting arrangements through a parenting plan or consent orders.
- Consent orders offer more legal protection and aim to protect the child’s best interests.
Definition of de facto relationships under the Family Law Act
A de facto relationship exists when a couple makes a mutual commitment to live together on a ‘genuine domestic basis’. De facto couples may be in an opposite-sex or same-sex relationship. Same-sex couples have equal protection under the law. Various factors can support the existence of a genuine domestic relationship. For example, the Court may consider the following:
- The relationship’s duration;
- The nature of the couple’s cohabitation;
- Whether a sexual relationship existed;
- Whether the couple was financially interdependent.
Satisfying the Court that a de facto relationship existed is not the only hurdle to pursuing family law matters. A couple must meet at least one of the following criteria to be able to apply for property orders:
- The relationship existed for a minimum of two years;
- There is a child of the relationship;
- The party applying to the Court made large enough contributions to the relationship that it would be a serious injustice not to make an order;
- The parties have a registered relationship under State or Territory law.
De facto couples can reach a property settlement through the Court or between themselves. Each of these options has particular requirements. Couples must organise a property settlement within two years of their separation.
Binding financial agreement
De facto couples agreeing on how to divide their property may enter into a financial agreement. Financial agreements don’t involve the Family Court but have specific requirements.
Before parties can finalise a financial agreement, they must seek independent legal advice. Their nominated family lawyer must advise them of how the agreement affects their interests.
Financial agreements can be a more flexible way to organise a property settlement than a court order. However, applying for an order through the Court is generally seen as having more legal force.
A consent order gives a property agreement the Court’s seal of approval. The proposed property division must meet the Court’s strict ‘just and equitable’ standard. Even if both parties agree to a particular settlement, the Court may deny it if this standard isn’t met. The Court uses a four-step process to assess property settlements.
The Court finds the net value of the marital asset pool. This requires both parties to fully and frankly disclose all assets and liabilities.
The Court assesses the contributions of both parties. Contributions may be financial or non-financial. Non-financial contributions can include child raising and maintenance of the home.
The Court considers the future needs of each party. Many factors can affect future needs, including a party’s:
- Health and age;
- Future earning potential;
- Employment prospects;
- Access to financial resources.
The Court decides whether a settlement provides both parties with a just and equitable outcome.
If the de facto couple has children, they can organise parenting arrangements through a parenting plan or a consent order. Parenting plans are less formal and offer more flexibility. However, we recommend applying for a consent order since parenting plans are not legally enforceable.
When applying to the Court for parenting orders, the primary consideration is the child’s best interests. Several factors underpin a child’s best interests in the Court’s eyes, including:
- Having a meaningful relationship with both parents if it’s safe;
- Protection from physical or psychological harm;
- Receiving parenting that fosters their full potential.
The Court expects parents to share parental responsibilities equally. Equal parental responsibility means both parents will make decisions affecting a child long-term.
There is no expectation that a child will spend equal time with both parents. The time a child spends with each parent depends on factors such as:
- The work commitments of each parent;
- The child’s ability to cope with change;
- The distance between each parent’s household.
We’re here to help
De facto couples have similar legal standing to married couples regarding property and parenting matters. You can file a divorce online, but you should seek legal advice to ensure you meet your legal obligations.
Shanahan Family Law has extensive experience working with married and de facto partners on family law issues. Contact our office today for an initial free discovery call.