De Facto Relationships (including same sex relationships)

Essentially people who live in de facto relationships which are sometimes described as domestic relationships or domestic partnerships do not enjoy the same rights as married people. Where the relationship breaks down their choices are:

Separation
Division of property
Maintenance
Care of children

Unlike married people these relationships also encompass same-sex relationships and depending upon the nature of it there may or may not be children who have to be cared for. Despite this, de facto partnerships bear very little similarity to marriage at law. Marriage is fundamentally different to a de facto relationship and where there is a breakdown it is governed by the Family Law Act 1975 whereas with de facto unions, as they are not marriages they are covered by state or territory law. There are a number of significant differences from one state or territory to another and they do not necessarily provide for future needs and capacities of their partners. Suffice to say children are treated differently as they fall under the provisions of the Family Law Act and issues involving child maintenance are dealt with by the Child Support Agency. Irrespective of the cause of de factos' anomalous status and the different types of tests which apply in this area litigation is more expensive and far more difficult for self-represented litigants.

De Facto Relationships ~ New South Wales and Victoria

Originally de facto relationships in NSW were governed by the De Facto Relationships Act which was replaced in June 1999. The term "De Facto Relationship" has been significantly widened to cover all relationships between two adults over the age of 18 years who live together, are not married and are not siblings or parent/child of each other. This definition now covers same-sex relationships providing a level of protection for homosexuals which had not existed previously.

The new act specifically refers to domestic relationships and defines them as a domestic relationship or the close, personal relationship between two adults who are living together one or each of whom provides the other with domestic support and personal care. If this care and support is provided for by a government agency or scheme, a body corporate or a charitable benevolent organisation then the relationship is not a domestic relationship. De facto couples are treated very differently from married couples particularly in the following areas:

maintenance
division of assets
in cases of intestacy (one partner dies without a will)

Like other states and territories throughout Australia de factos are now provided for in Victoria by Act of Parliament. De factos have only been provided for since 1 June 1988 before which they were left without remedy. Victorian law contemplates domestic relationships and domestic partnerships and a domestic relationship is defined as a relationship between a couple which includes same-sex relationships where they live or have lived together on a genuine domestic basis.

Each area will be taken in turn.

Maintenance

Specifically in New South Wales there is no general right to maintenance between parties to a domestic relationship. Maintenance may be obtained if the court is satisfied that you cannot adequately support yourself for a number of specified reasons. The court may make an interim maintenance order where it appears to the court that the applicant is in immediate need of financial assistance. Maintenance orders cannot be made against a party to a domestic relationship where the applicant has entered into a domestic relationship with another person who, at that time, has married or remarried. Where you are separated and have not entered into another relationship you must make your claim within two years from the date that your relationship ended. In cases of real hardship the court can ignore this rule. Victoria is even more restrictive than New South Wales. Irrespective where there is a child it is covered by the Family Law Act and an application for maintenance has to be made within 12 months of the date of birth of the child.

Property

New South Wales

In New South Wales one of the difficult areas is how to divide property accumulated by de facto couples while they were together. As with family law it includes all property with the courts considering what is just and equitable in the circumstances. Financial and non-financial contributions are considered by the court as are cohabitation agreements which have been property executed.

Victoria

In Victoria the property of domestic spouses only came within the ambit of legislation from 1 June 1988. The relationship must have lasted for at least two years unless there were children or where there is injustice or hardship would result. For a de facto spouse to make application for division of property they must have ended their domestic relationship after 8 November 2001. Where a court makes an order involving the distribution of property and one of the former partners tries to circumvent it then the court may penalise them by ordering costs against them. All types of property are covered.

The Courts look at capacity and hardship. As with the Family Law Court Victorian courts can make orders adjusting property interests from one partner in favour of another. Where you fail to make a claim for division of property before your partner dies then you lose those rights.

The courts need to give consideration to any cohabitation agreement executed by the parties during the course of their relationship. Where a de facto relationship ends it makes it a lot easier to deal with property. Although the court tries to give force and effect to the agreement it is not bound to do so and can go outside the agreement as a result.

Death

New South Wales

Where a person dies without a will this is know as intestacy and the distribution of assets is determined according to a specified statutory order. Where you leave a de facto spouse who was your sole partner at the date of death and no children the de facto inherits the whole of the estate. Where a de facto spouse has been left out of a will they can make a Family Provisions Act claim against the estate.

As has been indicated previously this is a complicated area of the law. Legal advice should be obtained to ensure that you preserve your entitlement both during the life of your de facto partner and on death. Obviously you should see a lawyer to obtain a cohabitation agreement and obtain a will or advise your partner that they need to have one as well which provides for you on their death.

Victoria

Although most people in Australia make a will there are a number who don't and who die intestate. Although assets will be distributed according to a specified statutory order the matter is made more complex because the Administration and Probate Act applies to surviving husbands, wives, domestic partners and children including children borne outsides the marriage.

General

As in all these cases it is best to obtain informed legal advice due to the complexity of this area of the law and the inequalities which exist between de facto partners and married couples. De facto relationships by their very nature are more unstable than marriages and it behoves anyone who is contemplating entering into one or who has entered into one to seek legal advice to ensure that they are properly protected.

This area is made more complicated because of the way the law looks at maintenance, division of property and care of children. Essentially claims for maintenance are based upon hardship. Claims for a division of property must be made within two years from the date of separation and children need to be dealt with under the Family Law Act. There are also different cost consequences for partners in this area than under the Family Law Act. Legal advice is the key to security in this area so do not delay if you require proper, informed legal advice.

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