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What you need to be aware of if you are in a de facto relationship


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What happens if a de facto relationship ends?

Many people believe the common myth that "if you aren’t married then you aren’t entitled to anything".

However, this is not true.

For many years, parties to a de facto relationship have been provided with the same rights as married people at law, in respect to claims for property settlement and maintenance under the Family Law Act 1975.

Property Settlement

If you are in a de facto relationship and that relationship ends either party may be entitled to make a claim for property settlement. Click here to find out more about Property Settlement. 

Financial Support after Separation (Maintenance)

If your de facto relationship ends, either party may be entitled to make a claim for maintenance. Click here to find out more about making a claim for maintenance.

What if my ex-partner denies we were in a relationship?

If there is a dispute about whether a de facto relationship existed, a declaration stating that there has been a de facto relationship can be obtained from the Family Law Courts (Family Court or Federal Circuit Court).

The person applying for the declaration will need to provide evidence to the Court substantiating that there was a de facto relationship.

For there to be a de facto relationship, the parties need to:

  • be persons not legally married to one another;
  • not related by family;
  • have a relationship as a couple living together on a genuine domestic basis.

What determines a de facto relationship?

When working out if two people are in a de facto relationship, the court will look at:

  • the duration of the relationship;
  • the nature and extent of common residence;
  • whether a sexual relationship exists;
  • the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
  • the ownership, use and acquisition of their property;
  • the degree of mutual commitment to a shared life;
  • whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
  • the care and support of children;
  • the reputation and public aspects of the relationship;
  • any other matter the court deems appropriate in the circumstances of the case.

Once it has been established that a de facto relationship existed and the criteria to bring a claim satisfied, the parties will enter into the normal Court process to determine the matter. At any time before a final hearing (Trial) the parties can negotiate an agreement and enter into orders made by consent. It is important to remember that a court will only make consent orders proposed by the parties if they are just and equitable. The parties can otherwise proceed to Trial.

Protecting Your Assets

Parties to a de facto relationship can enter into Financial Agreements (sometimes referred to as prenuptial agreements). These types of Financial Agreements can be entered into prior to the parties living together, or during the course of their de facto relationship.

Are you in a de facto relationship and want to protect your assets? Contact Ryan Thomas who specialises in advising on and drawing Financial Agreements.

Alternatively, if you are in a de facto relationship and you have recently separated, contact Rebecca Lucas to obtain specific legal advice about your rights and any property settlement or maintenance entitlements you may have.

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Get in touch with today's blog writer :
Rebecca Lucas 

Associate in Family Law

Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to South Australian legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.