What Is the Difference between a Formal Marriage and a De Facto Relationship?
The number of people who are choosing to enter into a formal relationship as opposed to a marriage has increased considerably over the last generation or so. As a consequence, the law relating to financial and property settlements after separation has changed across Australia in order to recognise this. Specific terminology defines the difference between a marriage and a de facto relationship, which you should be aware of, before proceeding with any negotiation. What do you need to know here?
How Is This Defined?
If your relationship can be accurately portrayed as "de facto," you will be entitled to the same rights and results as if you were married in the eyes of the law. This includes any financial or property settlements and any maintenance or other arrangements that are made for children who are part of this relationship.
Qualifying Elements
The law will need to know that you have had a real relationship, living together on a "genuine domestic basis." In order to determine this, there are four specific elements that will first need to be satisfied:
- Has the de facto relationship been in existence for at least two years?
- are there any children from this relationship?
- was the relationship registered under a law of a territory or state?
- have significant contributions been made to the relationship by one of the parties and a serious injustice would occur if an order was not subsequently made?
If at least one of these elements is in place, then the parties can commence proceedings in family court and this court will be eligible to deal with the matter as if it were presented by a legally married couple.
Anticipating Problems
As you can see, there are repercussions involved whenever two people decide to enter into this style of relationship. As a consequence, it's always a good idea for the individuals to think about signing a "binding financial agreement" (aka prenuptial) before they do so.
Moving Promptly
If you're unlucky to have suffered a breakup to your de facto relationship, you will have two years to apply to settle property and are allowed to access the same legal structure as a married couple.
Getting Advice
This can be a complicated problem to unravel and it's always a good idea to talk with an experienced family lawyer in this field. Consider getting help to draw up an agreement before you move in together and certainly if you're unlucky enough to suffer a breakdown in the relationship.