Just because a couple lives together does not automatically mean they are in a de facto relationship. Various factors determine whether two people are living in a de facto relationship. These include whether they share bank accounts, are in a sexual relationship, and whether family and friends recognise them as a couple.
If you move in with your partner to become “de factos”, you should understand your rights and responsibilities under de facto relationship laws.
What is a de facto relationship?
Contrary to public opinion, no fixed time period determines whether a couple is in a de facto relationship. However, under the Family Law Act, couples are generally recognised as a de facto couple if they have lived together on a genuine domestic basis for at least two years or have a child together.
There is no single checklist to prove a de facto relationship. Courts consider a range of factors, including:
- Whether the couple lives together and how long they have lived together
- Whether they have a sexual or intimate relationship
- Whether they share joint bank accounts or property
- Whether they share living costs such as utilities
- Whether family and friends recognise them as a couple
- Whether they have children together
How do I protect my assets if I am in a de facto relationship?
To protect assets, couples may consider a financial agreement (often called a “binding financial agreement”). This agreement records each party’s assets at the start of the relationship and sets out how assets will be divided if the relationship ends.
Strict legal requirements apply to financial agreements. Each party must receive independent legal advice, and the agreement must be properly drafted. A court can set aside a financial agreement in some circumstances after separation. A lawyer can explain the risks and requirements.
If couples do not enter a financial agreement, they can still take steps to keep finances separate. This may include:
- Keeping bank accounts and finances separate
- Avoiding joint ownership of property
- Each party remaining responsible for their own debts and financial decisions
- Avoiding financial arrangements that suggest future dependence, such as naming each other in Wills, superannuation, or insurance
- Paying rent or board if one party owns the home
To protect your assets in a de facto relationship, you should seek legal advice.
How does the law treat a de facto relationship?
If a de facto relationship is recognised under family law, either party may apply to the court for orders about property and financial matters after separation. The applicant must generally show that the relationship lasted at least two years. However, exceptions apply, including:
- The couple has a child together
- One party made significant contributions and it would be unfair not to make orders
The court may make orders relating to:
- Property settlement
- Spousal maintenance
- Superannuation splitting
A property claim must usually be made within two years of separation.
Conclusion
De facto couples often have similar legal rights to married couples under the Family Law Act. Courts assess a range of factors to determine whether a de facto relationship exists.
If you are moving in with a partner, it is important to understand how the law may apply to your situation.
This is general information only and does not constitute legal advice. You should obtain advice based on your specific circumstances.
If you or someone you know wants more information or needs help or advice, please contact us on 07 5576 9999 or email [email protected].
