A person is in a de facto relationship with another person if they are in a relationship as a couple living together on a “genuine domestic basis” but are not legally married to their partner.
You do not need to be living together to be considered as being in a de facto relationship. This is only one of the factors that will be considered. The other factors that will be considered include:
1. the duration of the relationship;
2. the nature and extent of the couple’s common residence;
3. whether a sexual relationship existed;
4. the degree of financial dependence or interdependence between the couple;
5. the ownership, use and acquisition of property;
6. the degree of mutual commitment to a shared life;
7. the care and support of children; and
8. the reputation and public aspects of the relationship.
You can legally still be in a de facto relationship even if one or both of you and/or your partner are legally married to or in a de facto relationship with other people.
Although you may be in a de facto relationship, pursuant to the Family Law Act the Court only has the power to make orders for the division of property or spousal maintenance if it is satisfied that:
1. you have been in a de facto relationship for at least two years; or
2. there is a child of your relationship; or
3. that one of you has made substantial contributions (financial, non-financial or as a homemaker or parent) and a failure to make an order would result in a serious injustice; or
4. your relationship has been registered under State or Territory legislation.
Are pre-nups binding?
In Australia, a ‘pre nup’ is referred to as a Binding Financial Agreement (BFA). A BFA can be legally binding provided it complies with the strict requirements set out in the Family Law Act.
Parties can enter into a BFA to record what happens to their assets and liabilities in the event their marriage or de facto relationship breaks down. A BFA can also deal with claims for spousal maintenance. Both parties must obtain independent legal advice before entering into a BFA.
A BFA can also be entered into after marriage or the commencement of a de facto relationship.
How do I get a Divorce?
To be eligible to file an Application for Divorce, the Federal Circuit Court of Australia must be satisfied that your relationship has irretrievably broken down and that there is no prospect of reconciliation with your former spouse. Before filing an Application for Divorce you must have separated from your spouse for at least 12 months prior to filing an Application for Divorce. During the 12 months following separation you can resume cohabitation with your spouse for a period of no more than 3 months without having to recommence the 12 month period of separation.
It is possible to live together under the one roof and still be considered to be separated. In this circumstance you may be required to produce evidence from neighbours, friends and family confirming that you were separated whilst living together under the one roof.
The court has the power to grant a divorce if either party: 1. Regards Australia as home;
2. Intends to live in Australia;
3. Is an Australian citizen; or
4. Ordinarily lives in Australia and has been living in Australia for 12 months prior tothe filing of an Application for Divorce.
The Court must be satisfied that the marriage was valid. This can be proved by way of production of a marriage certificate or, in some circumstances where it is not possible to obtain a copy of the marriage certificate, some other evidence confirming that a valid marriage exists.
If there are children of the marriage, the court must be satisfied that appropriate arrangements have made for their care.
If you have any further questions the Family Law team at Marshalls+Dent has a wealth of experience to draw upon in order to provide our clients with comprehensive advice in relation to any divorce related issue.
My partner and I have separated – what happens with the children?
In Australia the terms “custody”, “access” and “visitation” are no longer used.
The living arrangements for children after separation are based on who the child “lives with” and who the child “spends time with”. The children may “live with” both parties on an equal basis or they might “live with” one parent and “spend time” with the other parent. Regardless of which parent the children live with or spend time with it is important to note that there is still a presumption of “equal parental responsibility” which relates to the long term decisions about the children’s welfare, such as education and medical decisions.
If the arrangements for the children post-separation cannot be agreed between the parties, the first step is to arrange a mediation with an accredited Family Dispute Resolution Practitioner. This can be arranged through organisations such as Relationships Australia or Family Relationships Online. Alternatively there are private practitioners who can assist if required.
If mediation is successful then the parties can document their agreement by way of a parenting plan and implement this immediately. It is important to note that parenting plans are not binding or enforceable but do serve as a record of the parties’ intentions which can be produced to a Court at a later date. If you have reached an agreement with respect to parenting arrangements and you would like this to be a permanent arrangement, you should seek for this to be formalised by way of Consent Orders in the Family Court.
If mediation is not successful (or one party refuses to participate) then the Family Dispute Resolution Practitioner will issue a certificate pursuant to Section 60I of the Family Law Act 1975. This certificate is required prior to any party making an Application in a Family Law Court seeking orders in relation to parenting matters. If a Family Law Court is required to make a determination about the appropriate living arrangements for a child the court’s primary consideration is what is in the child’s “best interests”.
What is spousal maintenance?
Spousal maintenance, also known as alimony, is where one spouse assists the other to pay their living costs. Spousal maintenance can be ordered against married and de facto parties. Spousal maintenance can be paid periodically or in a lump sum.
Spousal maintenance is not an automatic right. In order to obtain spousal maintenance payments, the applicant must satisfy a two part test. The first part of the test for spousal maintenance is whether the applicant is unable to support himself or herself from his or her own resources (not including Centrelink or voluntary assistance from friends or family). The second part of the test is whether the other party is able to assist the applicant after paying for the other party’s own reasonable living costs. However, it is not mandatory that a court order spousal maintenance where the other party is found to have that capacity.
The amount of spousal maintenance will vary in each case. The court will have regard to the pre-separation living circumstances of the parties, however, the reality in most cases is that it is more expensive to run two homes than one and both parties will have to accept some reduction in the resources available to support themselves.
In some cases, spousal maintenance is not a suitable option to obtain financial support because the other party may not be in a good financial position. In that case, there are other short term remedies available, such as partial property settlements or interim costs orders.