Defacto relationships generally refer to both heterosexual and same-sex couples who live together but are not married. They have almost the same rights as married couples. The Family Court Act recognises the existence of defacto relationships even if one or both parties are legally married to someone else. In Western Australia, defacto couples are presently unable to split superannuation, unlike the rest of Australia. There is no requirement for people in a defacto relationship to obtain a divorce when the relationship ends, but they have the same responsibilities regarding finances and childcare as if they were married.
A defacto relationship begins without a marriage ceremony, and one person may decide to end the relationship without legally finalising their financial or children’s custody arrangements. This is unwise. While you may separate amicably from your partner now, you may face challenges later on. What happens in a few years when your ex-partner has a new partner who is unhappy with what you agreed? If your ex then seeks to formalise financial arrangements, all assets, even those gained after your separation, could be taken into account by the Family Court in dividing property. This could leave you (and your future partners) exposed financially.
There are two ways that people can formalise the terms of their defacto separation:
Property settlement, arrangements for children and defacto partner maintenance may be dealt with by filing an Application for Consent Orders at the Family Court.
A Financial Agreement may be used, but this applies only to financial matters (i.e. not children). As there is no Court oversight of Financial Agreements, both parties must receive independent legal advice.
Either of these methods enables you and your ex to move on with your lives.
Two-year limit When a defacto relationship ends, there is a limit of two years within which you can apply for a property settlement or maintenance under the Family Court Act. After this two year period, settlement can only be made with permission from the Court.
Defacto definition The law says the Family Court of Western Australia can make property settlement orders for defacto couples if:
You have lived together for at least two years, or
one party made a substantial contribution
You have a child together under 18 and not getting a property settlement would result in serious injustice.
You must also show that one or both of you are in Western Australia on the day of making the application and you both lived in Western Australia for at least a third of the relationship.
You also have to either agree that it was a defacto relationship, or, if you don’t agree, you have to satisfy the Court that your relationship was the same as a marriage. Proving this can be difficult, and there are many different elements to a defacto relationship. Many people, particularly young people, live together as a couple but would not consider themselves a defacto couple.
Typical questions you may have:
Would my relationship be considered by the Family Court to have been a defacto relationship?
Should I seek Consent Orders or opt for a Financial Agreement?
Why am I not able to obtain any of my partner’s superannuation?
Are my circumstances more complex, requiring a strategic legal approach?
Do I need to write a new Will, and if so, when should it come into effect?
Looking for a defacto lawyer in Perth? Our team of experienced, professional, Perth Family Lawyers are here to help with your defacto relationship settlement.
Phone us for a free, 15-minute phone consultation on (08) 9486 9733.