De facto Facts – Where does a relationship end and a de facto partnership begin?
If you have been in a serious relationship and moved in with your partner then you will know what it is like to mix and match your furniture, set up joint banking and split bills for food and utilities. As you settle into your new lifestyle, there is one aspect that many people overlook, that is, the two year clock that starts ticking from when you start living together to when your relationship will be recognised at law.
A de facto relationship in Western Australia is a relationship where two people (irrespective of gender) who are not married to each other live together in a marriage-like relationship. Usually after two years a relationship will be considered de facto, however, full consideration is given to other circumstances of the relationship to determine if it is de facto or not, and in some instances a de facto relationship can exist before the two year mark is reached.
This definition has applied to more than 110,000 West Australian’s who live in de facto relationships.
De facto does not mean exclusivity, a person can be legally married to someone else or in another de facto relationship and still be considered to have entered into a further, separate, de facto relationship.
What kind of circumstances will the court consider when deciding if a person is in a de facto relationship?
The Court can look at a variety of factors to determine if people are in de facto relationships. The list is set out in s13A of the Interpretation Act 1984 and includes:
- The length of the relationship between you and your partner.
- Whether you lived in the same home.
- The nature and extent of your common residence.
- Whether there is, or has been, a sexual relationship.
- The degree of financial dependence or interdependence, and any arrangements for financial support, between you and your partner.
- The ownership, use and purchase of property (including property you own individually).
- The degree of mutual commitment by each of you to a shared life.
- Whether you care for and support children.
- How your relationship as a couple is perceived by others.
While comprehensive, this list is not exhaustive, and not all factors have to be shown in order to determine that the relationship is a de facto relationship.
Why does it matter?
With the average costs of weddings standing at $40,000 and rising, it’s no wonder people are remaining unmarried for longer durations or choosing not the tie the knot at all. So, now that you have read through the list of factors considered, do you think you might be in a de facto relationship. If the answering is yes, the next questions will be: “So what?”
In Western Australia, de facto relationships include same sex relationships and are provided almost equal standing as married relationships. This means your partner has legal standing to bring actions in the Family Court for both Children and Property issues.
Regardless of the date of separation, parties who separate from a de facto relationship are able to access the Family Court of Western Australia for children’s matters.
“What’s mine is yours and yours is mine” is not a phrase limited to married couples. As of December 2002, parties who separated from a de facto relationship have been able to access the Family Court of Western Australia for property matters.
Should you and your partner separate it is possible to reach an agreement outside of the Family Court. Here at Lynn & Brown we have a professional mediator who can assist separating couples reach an agreement over maintenance and property issues. Where parties have reached an agreement as to the way they wish to divide their property, they can obtain consent orders from the Family Court or enter a Binding Financial Agreement.
Usually, such a case will not be heard in the Family Court unless the relationship continued for at least two years, or where the person applying has made substantial contributions to the property of the parties and the failure to make an order would result in serious injustice to the applicant.
Importantly, once you have separated (if you were in a de facto relationship), you only have two years in which to bring you application for a de facto property settlement. The exception to this is where the person applying for leave can show they would suffer hardship if they were prevented from proceeding out of time.
How to protect your property
The laws in Western Australia allow de facto (or married) couples to enter into a binding financial agreement. This financial agreement can act as an agreement of the share of property bought into the relationship and how it will be divided if the couple separates. While this can be a touchy topic to approach, it can be very important if the relationship ends in separation. At Lynn & Brown, our family lawyers have over 40 years of experience between them so we can advise you on the best options to proceed and negotiate on your behalf to make the process as non-confrontational as possible.
Your estate planning
In the past de facto partners found it very difficult to make a claim under estate law for a share of the estate of their deceased partner. This has now been updated to allow long term partners to receive benefits under the estate where there is no will.
To simplify the process for loved ones, it is best to have a will in place confirming who will benefit from your estate upon you passing away. Here at Lynn & Brown we offer comprehensive estate planning including the preparation of your Will and the management of your probate upon you passing away.
If you or someone you know is concerned about any of these issues please don’t hesitate to give us a call.
About the author:
This article has been authored by Haley Graydon at Lynn & Brown Lawyers. Haley is a recent law graduate from UWA and is now a permanent graduate lawyer at Lynn and Brown.