FAMILY LAW – DE FACTO RELATIONSHIPS
How is the relationship formed in Australia?
According to Section 4AA of the Family Law Act 1975, the meaning of a de facto relationship involves two people (homosexual or heterosexual) where:- the people are not or were not legally married to each other. the people are not related to each other; parent, child(including adopted children), sibling or descendant. the people have a relationship as a couple living together on a bona fide domestic basis.
De facto relationships are governed by the Property (Relationships) Legislation Amendment Act, 1999.
What is the legal procedure for the break-up of that relationship?
The de facto relationship does not need to be dissolved as it was not a legal marriage.
Legal procedures are required for the breakdown of de facto relationships. They must be the duration of a minimum of two years for the law to operate.
De facto relationships are state law so are therefore different in each state. In New South Wales, the main law that deals with the break-ups of a de facto relationship is the Property (Relationships) Act, 1984 (NSW).
As of 1st March 2009, broken down de facto relationships (including same sex) can apply – through the Family Court – for property settlement under the Family Law Amendment (De facto Matters and Other Measures) Act 2008. Broken down de facto relationships may apply if they are unable to come to an agreement about how their assets should be divided. The same principles are therefore applied by the Family Court as if they were a married couple. They must make a claim within two years after the date that the relationship broke down.
Family Court will consider a range of factors when dividing property. These include: What each person owned before the relationship started.
Net value of assets. E.g. houses, shares, superannuation.
Direct contributions made by each person during the de facto relationship. E.g. wages, salary earnings, payments or improvements to properties. Indirect contributions made by each person during the de facto relationship. E.g. inheritances from relatives, payment of household expenses. Non-financial contributions made by each person during the de facto relationship. E.g. caring for children and domestic tasks. The future needs of certain members. E.g. ability to earn enough money, caring for any children and any financial resources. Courts will also take into consideration whether or not the couple have made any written agreements or contracts between them. Some couples enter into legally binding agreements, such as financial agreements under Part VIIIAB, Division 4 and sections 90UB, 90UC, 90UD and 90EU of the Family Law Act. This allows the de facto couple to make financial arrangements, if the relationship was to breakdown.
Spousal maintenance is money paid by one partner to help contribute to the care and welfare of the other partner after separation. The new laws that started 1st March 2009 gave de facto relationships access to spousal maintenance, under the Property (Relationships) Act 1984 (NSW), if it were to break down on certain conditions, such as: the de facto relationship must be a minimum of 2 years.
there are children from the de facto relationship.
one of the partners made a significant contribution, either financial or non-financial, to the property or finances of the other partner. the de facto relationship has been registered under a State or Territory law.
According to Section 90SJ of the Family Law Act, a de facto maintenance ends when: either of the couple dies.
the person receiving payments remarries(unless a court orders for the payments to continue under certain circumstances).
Death of a de facto partner
To die without a will in known as 'intestacy'. The laws of intestacy operate to state how his/her property should be divided by the court.
The Wills, Probate, and Administration (De Facto...
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