Entitlements in a De Facto Relationship

Entitlements in a De Facto Relationship

Under the Family Law Act (Cth) 1975, a party to a de facto relationship can make an application to the Family Court or the Federal Circuit Court of Australia for a property settlement and/or maintenance.

This article will address some of the commonly asked questions regarding de facto relationships and family law:

1. Should I register my de facto relationship?

   In the event of a relationship breakdown, it is not uncommon for one party to dispute the existence of the de facto relationship. Therefore, it is advisable to register a de facto relationship.

   Adults living in NSW and are in a relationship as a couple can apply to register their relationship. This includes same-sex couples.

   Although a relationship cannot be registered if either person is married, or in another registered relationship, or in a relationship as a couple with another person, the Family Law Act (Cth) 1975 recognises that a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

2. Can I unregister my de facto relationship?

   In the event of a relationship breakdown, either party can make an application to revoke their registered de facto relationship.

   There is a ninety (90) days cooling off period before the Registrar will revoke the registration of the de facto relationship. Similar to a divorce, this is to ensure that the parties have considered all their options and are not merely making an irrational decision to end their relationship.

3. My de facto relationship has broken down – when can I apply for property settlement and maintenance?

   If your de facto relationship has broken down, either party can apply to the court for a property settlement and/or maintenance within two (2) years of the relationship breakdown. An application regarding parenting arrangements can be made at any time.

4. Can I apply for both a property settlement and maintenance?

   Yes. As stated above, parties to a de facto relationship can make an application to the court for either or both a property settlement and maintenance, provided they meet the court's requirements.

   1. Property Settlement

      In determining the division of property interests, the court will have regard to the following (amongst others):

      1. Direct or indirect financial contributions made by or on behalf of a party or a child of the relationship;

      2. Direct or indirect non-financial contributions made by or on behalf of a party or a child of the relationship;

      3. The contributions made by a party to the relationship to the welfare of the family and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent;

      4. The effect of any proposed order upon the earning capacity of either party;

      5. Any child support under the Child Support (Assessment) Act 1989 that a party to the relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship;

      6. The matters considered when determining maintenance (see B. below).

   2. Maintenance

      In determining whether to grant a party to a de facto relationship maintenance, the court will have regard to (amongst others):

      1. The age and state of health of each of the parties;

      2. The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;

      3. Whether either party has the care or control of an under 18-year-old child of the relationship;

      4. Commitments of each of the parties that are necessary to enable the party to support himself/herself and a child or another person that he/she has a duty to maintain;

      5. The responsibilities of either party to support any other person;

      6. A reasonable standard of living;

      7. The extent to which maintenance would increase the earning capacity of the person seeking it by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;

      8. The extent to which the party seeking maintenance has contributed to the income, earning capacity, property and financial resources of the other party;

      9. The duration of the de facto relationship and the extent to which it has affected the earning capacity of the party seeking maintenance;

      10. If either party is cohabiting with another person--the financial circumstances relating to the cohabitation;

      11. Any child support under the Child Support (Assessment) Act 1989 that a party to the relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship; and

      12. Any other relevant facts or circumstances.

Contact Sydney Lawyers and Associates Pty Ltd today for immediate legal advice regarding your entitlements. We can assist you from registering your de facto relationship to making an application to the court for property settlement and maintenance.