Family Law Case Note: De facto relationships and separation - what are my rights?
Publish Date: September 21, 2012
De facto couples (including same-sex couples) that have separated on or after 1 March 2009 are now covered by the new provisions in the Family Law Act 1975(Cth) for determining their entitlements for property and spousal maintenance.
Similarly, if de facto couples have children and are unable to reach an agreement with regards to the children's care arrangements, either party can file an application with either the Family Court of Australia or the Federal Magistrates Court seeking Parenting Orders with regards to:-
Parental responsibility which deals with the responsibilities, duties and authorities the parents have in relation to the welfare and development of the children; and
Orders which specify whom the children are to live with and whom the children are to spend time with.
As the circumstances of separation differ from case to case, there is no "cut and dry" answer as to what each partner should or would receive in terms of a property settlement or how the care arrangements of their children are to be determined. If you are going through separation with your partner, you should consult your solicitor in order to obtain appropriate guidance and advice on each of these issues so you can have a realistic idea as to what you may ultimately be entitled to receive in terms of property and what care arrangements are likely to be made by the Court.
Are all de facto couples across Australia covered by the new federal laws?
At present, most States are covered by the Federal Jurisdiction. Usually if you have resided for a substantial period of time or have made substantial contributions in one of the participating States, your property dispute will attract the new provisions under the federal jurisdiction.
However, it is advisable that you consult your solicitor to ensure that your dispute about property or maintenance will come under the new federal laws in the first place.
So what exactly is regarded as being a de facto relationship?
The Family Law Act 1975 (Cth) sets out the following key criteria for determining the definition:-
The persons are not legally married; and
The persons are not related by family; and
Having regard to all the circumstances of the relationship, the persons have a relationship as a couple living together on a genuine domestic basis.
How long do I need to be in a de facto relationship with someone before I can make a claim for property or maintenance?
Generally, a claim for property or spousal maintenance can be made if a relationship was for a period of at least two (2) years.
However, there are exceptions to the above prerequisite in circumstances where there is a child of the relationship or if one (1) of the de facto partners has made substantial contributions to the other partner's property.
If my partner and I reach an agreement on property and children's matters, what happens next?
If you and your partner reach an agreement, you then need to formalise and draw up the necessary documents recording the Agreement and have it lodged with the Court for approval.
You may require a solicitor's assistance in terms of ensuring that your Agreement meets all the technical requirements and it is drafted in a legally acceptable and appropriate manner.
If I cannot reach an agreement with my partner, what are my legal options then?
In the event that you are unable to reach a full agreement on all issues with your partner, your solicitor may assist you in negotiating with your partner a final agreement on all issues.
If one (1) of the issues in dispute concerns the care and welfare of your children, both you and your partner will need to attend mediation first in an effort to resolve them.
However, if all settlement options have been exhausted and your property and/or the children's issues remain unresolved, then you will need to consult your solicitor about the legal process involved in going to Court and obtaining a final determination on all issues.
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