Australian society has undergone significant change in many ways in recent decades.
Not only do we look a lot more diverse than we once did, but our definition of what constitutes a family is also very different to what we once understood by that term.
That change includes the rise of de facto relationships in preference to marriage. According to the 2016 Census, one in six Australians aged 15 or over now lives in a de facto relationship.
The significance of this change has been incrementally reflected in the law. But for some relatively minor differences, the rights and obligations of people in de facto relationships – whether man and woman or same-sex – are nowadays all but the same as married couples.
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How are de facto couples recognised by law?
A de facto relationship is defined under section 44A of the Family Law Act 1975 as a relationship between two people, including same-sex people, who are not otherwise legally married or related by family and with regard to all the circumstances of their relationship, live together on a ‘genuine’ domestic basis.
This definition, however, is not applied uniformly across government bureaucracy or even in different pieces of government legislation.
Courts employ a four-point threshold test to evaluate a relationship as de facto:
- That the parties have been in the relationship for at least 2 years;
- that there is a child from the relationship;
- that the relationship is, or was, registered under a prescribed law of a State or Territory;
- that in assessing property or custodial claims resulting from a breakdown of the relationship, it is recognised that significant contributions were made by one party and the failure to issue an order would result in serious injustice.
Once a de facto relationship is recognised, the rights of parties closely resemble those of married couples. If one partner dies, for example, the other can:
- Be entitled to a share of his or her estate;
- receive funds under workers’ compensation, if the partner died at work;
- access the partner’s superannuation;
- claim social security.
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How courts approach de facto relationships
Like married couples, the need for the court to intervene to decide disputes in relation to children and/or financial settlements also exists when a de facto relationship ends.
While married people can show a marriage certificate as proof of their relationship, de facto relationships can be more difficult to establish. Commonly, a party to the relationship with more substantial financial resources will deny the relationship qualified as a de facto one in order to avoid any split of assets when the relationship ends.
In addition to the threshold factors listed above, the court will assess the relationship on the basis of a number of different factors, not all of which need to be present for the relationship to exist.
It should be noted that a de facto relationship can be established even when one party is legally married to someone else, or also in a de facto relationship with another person.
Other factors the court will take into account include:
- Whether a sexual relationship existed between the parties;
- the extent and nature of shared living arrangements;
- the parties’ financial dependence on each other;
- the mutual commitment of the couple to a shared life;
- whether the relationship was recognised by others, such as family and friends, as de facto, and the couple presented themselves in that way;
- ownership, use and acquisition of the parties’ property.
Evidence may be required to prove or disprove any of the factors listed.
Alternative dispute resolution
As it is for married couples, the Family Law Act mandates mediation, or alternative dispute resolution, before making an application to the court for orders.
Mediation offers a cheaper, faster and generally less stressful means for couples to resolve areas of disagreement and dispute between them.
An accredited mediator facilitates this session, where both parties are able to put their case before a process of negotiations takes place to narrow discord with the aim of finding a workable solution both parties can abide by.
Any agreement reached between the parties can then be presented to the court for consent orders to formalise its terms.
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Are there any other differences between marriage and de facto?
The other key differences between marriage and de facto relationships apply to the end of the union.
Those seeking a divorce in Australia must meet certain conditions, including that they are Australian citizens; have lived in Australia for the past 12 months and intend to continue living in Australia; have been separated for at least 12 months, and; if married for under two years, the parties need to have filed a counselling certificate after attending counselling.
Divorcees must then begin property or spousal maintenance proceedings within 12 months of becoming divorced unless an extension is granted.
By contrast, de facto couples do not need to do anything when the relationship ends. If one or both parties wish to go to court to get a property settlement, however, proceedings must be commenced within two years of the relationship ending.
While de facto relationships are treated similarly to marriage, some differences remain in how such a relationship is defined. Centrelink, for instance, consider a couple to be in a de facto relationship from the moment they start living together, while Australia’s migration law insists parties have been living together for a period of 12 months or longer.
Whether you’re married or in a de facto relationship, the expertise of family law legal professionals can be invaluable in helping you assess your options when a relationship breaks down.
If you would like to further discuss any of the issues raised in this article, contact our expert Melbourne, Perth, Brisbane, Sunshine Coast Mediation team today. Mediations Australia exists to help people stay out of court and resolve their issues in a faster, cheaper and more effective way.