De Facto Relationships
As we delve into modern culture and our everyday norms alter, so too does the law in order to reflect such societal standards. A prime example of this are de facto relationships, which describes two individuals, either heterosexual or homosexual, living under the same roof as a domestic couple, whilst not being legally married.
De Facto with the Family Court
The Family Court has the power to conclude if there was indeed a relationship.
For a Family Court to be satisfied that a couple were in a de facto relationship and thus offering them the power to make Orders relating to property and maintenance matters, the following must have occurred:
The parties must have been in a relationship for a minimum of two (2) years, or they share a child of the relationship;
The parties must have lived in Australia for at least one third of their relationship (excluding Western Australia); and
The parties separated after 1 March 2009.
The major factors that the Court will consider when determining whether the parties are deemed to have been in a de facto relationship include:
The duration of the relationship;
The length of time the parties cohabitated;
Evidence of a sexual relationship;
Financial dependency on one other;
The distribution of assets within the relationship;
The care and support of children (if any); and
How others perceived the relationship.
If the Court is satisfied that a de facto relationship does in fact exist, maintenance and financial agreements may be made.
Maintenance and Financial Support in a De Facto Relationship
Maintenance refers to financial support that one party may be required to pay to their former partner in situations where they are unable to adequately provide for themselves. This is particularly the case where one party has a greater financial capacity than the other.
Maintenance and other property agreements may be documented as a financial agreement, either as a Binding Financial Agreement, or by filing Consent Orders with the Court. A Binding Financial Agreement, more commonly known as a ‘BFA’, is essentially an agreement between two parties in a relationship which can come into effect before, during or after a relationship. This document outlines how assets and liabilities would be distributed, or will be distributed, if there has been a breakdown of relationship.
Alternatively, a Consent Order is a formal document outlining a written agreement between two parties, that are approved by the Court to ensure that they are just and equitable. This document then becomes legally binding on the parties and if one does not comply with the Orders, the Court may enforce same.
It is pertinent that you apply for Court Orders regarding property settlement and maintenance as time restrictions do apply. A party is required to apply to the Court for Orders regarding property settlement and/or maintenance within two years of separation.
Seek Legal Advice
It is important that you seek your own independent legal advice between entering into a Binding Financial Agreement or before agreeing to a set of Consent Orders, so that you truly understand your rights and legal responsibilities. If you are separated or thinking about separation and would like to know your legal rights, call one of our family lawyers at Argent Law to further discuss.