De Facto & Same Sex Relationships
It is important to consider the legal status of a domestic relationship when thinking about your property, financial affairs, and estate planning.
The recognition of a de facto relationship is relevant when it comes to your property and assets, as well as entitlements to access certain remedies under family law legislation should you later separate from your partner.
Property settlements for all couples may now be determined under the Family Law Act 1975.
Same-sex relationships
The right for couples to marry in Australia is no longer constrained by sex or gender and the family law regime generally now applies to both heterosexual couples and same sex couples, whether married or in a de facto relationship.
Same-sex marriages that were solemnised and are valid in a foreign jurisdiction, subject to some exceptions, may also now be considered legal in Australia.
The retrospective recognition of same-sex marriages brings about important legal considerations, particularly when it comes to estate planning. If you are uncertain about the validity of your marriage, and how it affects your estate planning or other legal affairs, you can discuss your concerns with a lawyer.
What is a de facto relationship?
Under the Family Law Act persons are in a de facto relationship if:
- they are not legally married to each other; and
- they are not related by family; and
- having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Generally, to be recognised as a ’de facto couple’ and have the same legal rights as a married couple, the parties must have been living together for at least two years OR have at least one child from the relationship.
There is no one-size-fits-all checklist to prove that a couple is living in a de facto relationship, rather there are factors that should be taken into consideration when assessing whether a couple are in a de facto relationship. These include whether the couple:
- are living together and if so, how long they have been living together
- has a sexual/intimate relationship
- share joint bank accounts or own property together
- share weekly living costs, such as utility bills
- are known by family and friends as a couple
- share any children
How do I protect my assets if I am in a de facto relationship?
The recognition of a de facto relationship under the Act has been a major step in acknowledging the rights of less traditional (non-spousal) relationships. It is important however that de facto partners are aware of their legal status and can plan to prevent unintended consequences arising from their relationship.
All couples can enter into a financial agreement under the Family Law Act, including pre-nuptial style agreements. Some de facto couples choose to make a financial agreement to set out how their property will be divided if their relationship subsequently breaks down. Financial agreements are useful for couples who are forming a new relationship and have children from a previous relationship to protect their own assets and their children’s inheritance.
Financial agreements are also useful in circumstances where one party has significantly greater assets than their partner.
All relationships are unique, and we understand that property issues for couples can be broad and varied. Our family law specialists can help determine the legal status of your domestic relationship and provide advice about protecting your assets. If you have recently separated from your de facto partner, we can also assist you with formalising a property settlement so you can move on with your financial affairs.
If you need assistance, contact us at [email protected] or call 02 6622 5566 for expert legal advice.