de facto

De facto relationship or Friends with Benefits?

Since 1 March 2009, parties who were in a de facto relationship and are now separated may make an application to the Family Court or Federal Circuit Court seeking Orders for the alteration of property interests i.e. division of property.

Pursuant to section 4AA(1) of the Family Law Act 1975, a person is in a de facto relationship with another person (regardless of gender) if:

  1. They are not legally married to each other; and
  2. They are not related by family; and
  3. Having regard to all of the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

The circumstances that the Court may take into account (as referred to above) may include any or all of the following:

  1. The duration of the relationship – The relationship or total duration of the relationship was for at least two years (unless an exception applies). An exception to the two-year threshold is if there is a child of the relationship;
  2. The nature and extent of the common residence;
  3. Whether a sexual relationship exists;
  4. The degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;
  5. The ownership, use and acquisition of the parties’ property;
  6. The degree of mutual commitment to a shared life;
  7. Whether the relationship was registered;
  8. Care and support of children (if any);
  9. The reputation and public aspects of the relationship i.e. if the parties were acknowledged by friends and/or family as being a couple.

A de facto relationship may exist even if one person is, or if both people are, legally married to another person or are in another de facto relationship.

Time limit to apply to the Court for the division of property

The application must be made to the relevant Court within two years of the date of separation. This also includes the time that the parties are separated under-one-roof (if applicable).

If you would like to make an application outside of this time, you would need to first seek the leave of the Court i.e. ask for the Court’s permission to apply. The Court may or may not grant you leave depending your circumstances.

If you have not been granted leave by the Court to make the application, you and the other party may still enter into a Binding Financial Agreement for the division of property.

 

This article provides information that is general in nature and is not a substitute for legal advice.

What is a Binding Financial Agreement (BFA)?

A Binding Financial Agreement (BFA) is an agreement made between parties in a relationship – including same sex – which provides for the division of matrimonial assets and liabilities in the event of a separation. Types of BFAs include parties who are:

  1. In contemplation of a marriage (s90B);
  2. In contemplation of a de facto relationship (s90UB);
  3. During a marriage (s90C);
  4. During a de facto relationship (s90UC);
  5. After divorce (s90D); and
  6. After a breakdown of a de facto relationship (s90UD).

Besides addressing the division of matrimonial assets and liabilities, a BFA can also address issues of spousal maintenance (financial support from one spouse/de facto partner to another) and superannuation splitting.

BFAs however are not able to address issues of living and spend time arrangements regarding children, nor can they address child support issues. Parties would have to enter into a Parenting Plan, Consent Order and/or a Child Support Agreement for matters involving children and their maintenance. These are also agreements that Hassall’s Litigation Services can assist you with.

A BFA remains binding even after the death of one or both parties unless it has been set aside by a Court or terminated by the parties.

BFAs are made between the parties without the involvement of the Courts. This means that the parties, with the advice of their respective solicitors, are able to agree on a settlement without the approval of the Courts.

A BFA is binding if and only if the following legislative requirements are complied with:

  1. The agreement is signed by all parties; AND
  2. Before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages (at the time that the advice was provided) to that party of making the agreement; AND
  3. Either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice was provided to that party (whether or not the statement is annexed to the agreement); AND
  4. A copy of the statement that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; AND
  5. The agreement has not been terminated and has not been set aside by a Court.

A BFA can be terminated by the parties by:

  1. Executing a new BFA which includes a provision terminating the old BFA; OR
  2. Signing a Termination Agreement pursuant to the relevant sections of the Family Law Act 1975.

Would you like to know if a BFA is suitable for you? Contact our office today and speak with Hui Yin Ong to obtain more information and family law advice.

 

This article provides information that is general in nature and is not a substitute for legal advice.