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What’s the difference between a de facto relationship and marriage?

What is the difference between a de facto relationship and marriage in the eyes of the law?

The make-up of the modern household is quite different to what it used to be even just a generation ago. As a result, the definition of spousal relationships has also changed in the eyes of the law. Today, de facto couples are entitled to the same rights and claims when it comes to Family Law matters including property, financial settlements, maintenance and arrangements for the children of the relationship.

How does the law define a de facto relationship?

The laws defining a de facto relationship are outlined in the Family Law Act. The law requires that two people, who may be of the same or opposite sex, have a relationship as a couple living together on a genuine domestic basis. However, a relationship is not a de facto relationship if the couple is legally married to one another or if they are related by family.

There are four “gateway” criteria that are used to assess whether a claim for property settlement or maintenance can be made in respect of the relationship when it comes to Family Law matters:

  1. That the period of the de facto relationship is at least 2 years;
  2. That there is a child of the de facto relationship;
  3. That the relationship is or was registered under a prescribed law of a State or Territory.
  4. That significant contributions were being made by one party and the failure to make an order would result in a serious injustice.

For any relationship that ended after March 2009, and which meets at least one of the four “gateway” requirements for de facto relationships, parties are able to commence proceedings in the Family Court or the Federal Circuit Court. The Courts will then deal with the matter in a very similar way they would with a legally married couple commencing proceedings.

For individuals who are considering entering into a de facto relationship by moving in together, or who have moved in together, it is important to understand the implications of such an arrangement. It is worthwhile to discuss matters with your partner or consider a more formal Binding Financial Agreement (or “pre-nup”) which is available to de facto couples as well as married couples and provides greater certainty when it comes to the division of assets in the event of a relationship breakdown. An Accredited Family Law specialist can assist you in deciding whether a Financial Agreement is right for you.

What am I entitled to if my de facto relationship breaks down?

If your de facto relationship comes to an end, you have up to two years to apply for financial orders (property settlement). If you seek to apply after this two year period, you will need to first obtain the Court’s permission.

You should seek advice from an experienced lawyer as to your particular entitlements in the circumstances of your relationship as there is no one answer as to the appropriate outcome. Learn more about de facto property settlement.

You will have access to the same legal systems as a legally married couple and can apply for various types of court orders including parenting, child support, maintenance and the division of assets, including superannuation. As with separating married couples, de facto couples can come to an agreement outside of the court system through alternative dispute resolution.

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