The Rights of de Facto Relationships in Australia

Topics: Marriage, Law, De facto Pages: 5 (1497 words) Published: June 28, 2008
Introduction

"Marriage involves a number of legal rights and duties. If a man and woman live together as husband and wife but are not legally married, the legal consequences may be different from those arising from a legal marriage." (www.liv.asn.au)

The length of a de facto relationship can help to decide wills, intestacy, property settlements and maintenance after the breakdown of a relationship or the death of a partner. The nature of their assets and how those assets were acquired will help to determine property settlements. The existence of a sexual relationship may help to establish the actual existence of the relationship. The degree of financial independence each partner has may affect, upon failure of the relationship, the contributions made from each partner and any property distribution and maintenance. The de facto couple's genuine domestic arrangements and whether they have had children can determine, upon the breakdown of a de facto relationship, the property, maintenance and other financial support. Generally there is no duty between de facto partners to maintain one another. (http://elo.legalaid.qld.gov.au) All of the pre-mentioned components can have an impact on the rights and obligations of a de facto relationship.

Present Laws

A de facto relationship can be described as the relationship between a man and a woman who are known to live together as husband and wife but have not entered into any legally binding agreements. The Family Law Act and the Property Law Act both address issues concerning de facto relationships.

The Family Law Act 1975 (Cth)
The Family Law Act is a federal Act, which applies to all issues relating to children following the breakdown of a relationship whether the parents are married, have lived together in a de facto relationship or never lived together. Matters of child support, orders dealing with residence and contact and specific issues in relation to children are all dealt with by the Family Court. (www.familycourt.gov.au)

The Property Law Act 1974 (QLD)
Laws relating to property issues, where the parties have not been legally married but reside together as husband and wife in Queensland are set out in the Property Law Act. This is the only legislation, which relates directly to de facto relationships, as Queensland does not have a De facto Relationship Act like some other states in Australia.

Broker, "Defacto Legislation" (2000,Feb) states that the aim of the Property Law Act is to "provide for the resolution of financial matters at the end of a de facto relationship, recognise that de facto spouses should be allowed to plan their financial future, including the making of a cohabitation or separation agreement, and provide for a just property distribution at the end of a de facto relationship."

Cohabitation agreements are written to set out the ways in which a man and woman shall live in a de facto relationship. These agreements can be made at the commencement or end of a relationship.

Separation agreements however, are written to deal with property and possessions distribution, after the relationship has broken down or in the process of ending. Under s265, of the Property Law Act, de facto partners can make a separation agreement either in contemplation of ending their relationship, or after it has ended. That agreement can deal with financial recourses of the couple, the dividing of them individually, including property, superannuation elements, benefits and property.

A cohabitation or separation agreement should be in writing, signed by both parties and witnessed by a Justice of the Peace or solicitor. These agreements must also contain a statement of all-significant property, financial resources and liabilities of each de facto partner at the time the agreement is signed. Provided the agreement meets these conditions, it will be known as a "recognised agreement" and will in most cases be enforced. (Broker, "Defacto...
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