Today’s topic is about a subject that can create confusion and its often misunderstood – de facto relationships.
Under the Family Law Act, you and your partner may be considered to be in such a relationship if you’re are not married or related and you live together on a genuine domestic basis.
Since 2009 de facto couples may apply to the Family Courts to resolve their financial matters in the same manner as if they were legally married.
The fact that some couples may maintain separate residences but still have regular time staying over at each other’s houses doesn’t automatically mean that they are not in a de facto relationship.
The court will look at a number of circumstances to determine whether a de facto situation is in place, including the intermingling of your finances and other property and whether a physical relationship exists.
The public reputation of you as a couple is also important.
Do you present to the world as a unified couple or just a casual dating relationship?
If you are held to be in a de facto relationship with your partner, under what circumstances can either party make a claim against each other?
The first criteria is the amount of time that you have been together.
Subject to the following exceptions to the rule, you acquire the same legal property rights as a married couple after you have been together for a period or combined period of two years.
If, however, you have a child with your partner, the stipulation that you must have been together for two years doesn’t apply.
You may have only been together for 18 months but have a three month old daughter together.
In that situation, because there is a child from the relationship, either party will be able to bring a property claim under the Family Law Act.
Similarly, you will have a claim if you have made substantial contributions to the joint property to the extent that it would be a serious injustice if you were not legally compensated for the contribution made.
For example, your partner is running a business and persuades you to invest your total savings of $30,000.00 in the business, to enable the purchase of new equipment, to expand and grow. You later split up and they refuse to reimburse you saying that all of the assets are in their name.
Even if you have been together for less than two years, you will be entitled to bring a claim because of the substantial nature of the contribution.
The time period for bringing the application in the court for these types of claims is two years from the end of the relationship.
What about my super?
Since March 2009, the superannuation of de facto couples can be dealt with by the Courts when making orders about the division of the property of the relationship.
An amount of one party’s super can be transferred to the other as part of an asset division.
Splitting super does not, however, convert the superannuation into a cash asset.
It remains subject to the superannuation laws and is usually retained in the fund until retirement age.
There is no entitlement to draw the funds out early.
Obtaining early advice about your situation may help you to resolve matters with your former partner sooner rather than later.
Paula Phelan is a Family Lawyer with Specialist Accreditation in this area from the Queensland Law Society.
She has been a lawyer for 26 years and is the director of Phelan Family Law, a Rockhampton legal firm specialising in Family Law only.
