De facto and Same Sex Relationships

A de facto relationship is one in which two people who are not married and not related are living together as a couple on a domestic basis. The two people can be of the same sex or of the opposite sex.

If you are in a de facto relationship, it can be confusing to work out exactly what your rights and obligations are. At Berryman Partners we provide friendly, easy to understand advice to help you understand your situation.

Parenting issues in de facto relationships

Issues surrounding the children of a de facto relationship are dealt with in the same way as children of a marriage. De facto partners have the option of negotiating a Parenting Plan or obtaining consent orders to formalise their arrangements. If an agreement cannot be reached, either party also has the option of applying to the Court for parenting orders. Child support can also be sought by a parent of a child from a de facto relationship.

Property issues in de facto relationships

When a de facto relationship breaks down, the parties have similar options available to them in terms of how they deal with their property as any married couple.

Any agreement that can be reached directly by the parties can be documented by way of Binding Financial Agreement or Consent Orders which are filed in the Court.

If an agreement cannot be reached between the parties and one party files an Application with the Court, such application must be filed within two (2) years of the breakdown of the de facto relationship.

To obtain orders from the Court it will be necessary to prove one of the following things:

  1. That the total period of the relationship was at least two years, or
  2. That there is a child of the relationship, or
  3. That serious injustice would be caused to one of the partners if the orders were not obtained due to the contributions they made to the relationship, or
  4. That the relationship has been registered in a State or Territory that allows for the registration of de facto relationships.

De facto couples can also enter into financial agreements during the course of their relationship. These are usually referred to as Cohabitation Agreements. A Cohabitation Agreement can be used to classify the property of the relationship as being owned either jointly or individually. They can also be used to set out responsibilities within the relationship and domestic expenses amongst the parties.

Spousal maintenance in de facto relationships

Just like the parties to a marriage breakdown, a party to a de facto relationship that has broken down has a responsibility to financially assist their former partner if that partner cannot adequately support themselves. It is possible for a party who cannot meet their own reasonable expenses to seek an order that their former partner make spousal maintenance payments.

The Court will not automatically make an order for spousal maintenance. Instead, the Court will balance the needs of the applicant against the capacity of the other party to pay. Factors which will be considered by the Court include the age and health of the parties, their respective future earning capacities and their assets and financial resources.

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