What's the difference between a de facto relationship and marriage? | Watts McCray
When it comes to defining a de facto relationship NSW law follows the definition and principles set out in Federal legislation. For the purposes of the Family Law, . Find out whether you are in a de facto relationship or not. The definition of a de facto relationship in Australia is when two partners are living (or have lived). The one year de facto relationship requirement is a criterion that must be met by . There is no clear definition of compelling and compassionate circumstances.
The duration of your relationship Your living arrangements together How your finances are arranged — the degree of financial dependence and interdependence Whether a sexual relationship exists The way you present your relationship in public The degree of mutual commitment to a shared life Whether you own property together and how you have bought it Whether your relationship is registered with the state Whether you have or care for children together It is worth noting that none of these factors is a necessary requirement [Section 4AA 3 ] and other factors may also be taken into account [Section 4AA 4 ] What States Does This Definition Apply To?
This applies to all states and territories in Australia, with the exception of Western Australia. The reason being that all states except WA have referred their powers to the Commonwealth Family Law Act in relation to dealing with property and maintenance issues after the breakdown of a de facto relationship.
As mentioned above, the duration of your relationship is a factor in determining whether you are in a de facto relationship or not. There is no set rule of time for this. However, you will usually need to demonstrate you have lived together for at least two years. Click to Book an appointment, send an enquiry or to find out our costs to help you.
Property Division The family law recognises the need to protect the property interests and rights of parties to all relationships, including those to a de facto relationship and same-sex relationships.
Historical background InNSW became the first Australian jurisdiction to make special laws for non-marital heterosexual cohabitation, through the passing of the De Facto Relationships Act Previously, these relationships were dealt with under normal Property Law principles which led to injustices, especially for homemakers who were typically women. Further reforms were introduced with effect from 28 June by the Property Relationships Legislation Amendment Act The name of the De Facto Relationships Act was changed to the Property Relationships Act and the law dealing with financial adjustment including division of property, adult maintenance and financial agreements, was extended to same-sex partners.
A new federal legislation in relation to financial adjustment in relation to the breakdown of same-sex and opposite-sex de facto relationships came into force in early The reforms included the insertion of Part VIIIAB of the Family Law Actwhich deals with property adjustment, adult maintenance and financial agreements between de facto partners same sex or opposite sex in a manner similar to that currently provided for under Part VIII of the Act in relation to married persons.
In his reading speech, the Attorney General said: It provides a consistent approach to de facto property disputes across state and territory borders". Age and health b. Capacity to earn money c. The property and assets of each party d.
New relationships and new financial circumstances e. Future parenting responsibilities care and support The Court will consider the practical effect of the proposed property settlement, and whether it is "just and equitable" to both parties.
What is a de facto relationship?
The decision is made taking into account all of these factors. How we can help you with your property settlement Reaching a property settlement can be complex and stressful, whether it is carried out through a financial agreement, consent orders or in a court hearing. Armstrong Legal are Australian Family Lawyers who specialise in property settlements for de facto relationships.
The advice you can expect from us is both personal and practical, being tailored to your needs. We will inform you of your rights and obligations in a way that you can understand and at all times put you in a position to make informed decisions about the conduct of your case.
We are able to assist you with both the formalisation of agreements where there is no dispute or in situations where things are hotly contested. Spousal maintenance Under Australian Family law there is very limited legal obligation on one de facto spouse to maintain or support the other, either during the relationship or after separation. To be eligible for spousal maintenance, the applicant must show that he or she has lost their earning capacity as a result of the relationship, but that they are prepared to participate in training and further education to increase their ability to earn.
How do I know if I am in a de facto relationship?
Alternatively, spousal maintenance can be claimed when a party is unable to work because they are the primary carer for a child. This child must be the child of the former spouse. The same applies if the applicant cannot work because they are caring for a physically or mentally handicapped child.
An application for married couples must be made within 12 months of the date of the divorce application being filed. For de facto couples an application must be made within two years of separation. The Court may consider granting leave for a party to file an application after this time.
De facto Relationships - Family Court of Australia
Matters for consideration for married couples are outlined in sub-section 75 2 and for de facto couples in sub-section 90SF 3 of the FLA. Ultimately there is three limbs to the test for spousal maintenance.
The three parts to the test are as follows: Whether or not the person applying for the maintenance is exercising, to a reasonable extent, their ability to support themselves; Whether or not the person applying for maintenance after exercising their ability to support themselves has a reasonable financial need; and Whether or not the person that is being asked to provide the maintenance has the financial capacity to do so, having regard to their own commitments and standard of living which is reasonable in all of the circumstances.
Spousal maintenance can be made payable for a specified period such as to allow a person to complete a course of education, or up until the children reach school age, or may be payable indefinitely, until varied by subsequent court order. The Court has the power to vary any existing maintenance order provided there has been a significant change in circumstances since the making of the order.
Such variations may be to increase, decrease or cease future payments.
Spousal maintenance can also be payable on an interim basis up until final determination of the matter. Such orders are based upon the same legal criteria as final payments, but are more arbitrary in their making because of the limited way in which evidence is available to the Court on an interim hearing. In practical terms, such orders for interim spousal maintenance are made on the basis of needs and maintaining the status quo of the parties up until a final determination.
A Court can order urgent spousal maintenance refer to section Parties can contract out of spousal maintenance obligations by signing a financial agreement.
Brown v Brown DJM v JLM Armstrong Legal experienced in the issue of spousal maintenance, and can provide you with valuable assistance to achieve the best result in making your claim.