What is the difference between a marriage and a de facto relationship?
Marriages recognised by Australian law are at this date only those celebrated between a man and a woman. Australian law only allows parties to be married to one person at any given time.
A de-facto relationship is marriage-like in nature between two people, including those of the same sex, who have not been validly married.
What is a de facto relationship?
A de-facto relationship is defined in the Family Law Act. Some of the factors considered in defining a couple as ‘de-facto’ are:
- Not legally married to each other;
- Not related by family;
- Having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
- In deciding what constitutes ‘genuine domestic basis’ the Court may consider:
- The duration of the relationship;
- The nature and extent of their common residence;
- Whether a sexual relationship exists;
- The degree of financial dependence or interdependence, and any arrangements for financial support, between them; The ownership, use and acquisition of their property;
- The degree of mutual commitment to a shared life;
- Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
- The care and support of children;
- The reputation and public aspects of the relationship.
How does a Court decide what I get in my property settlement?
In determining an application for property settlement, the Court takes four basic steps:
- It identifies and values the property and financial resources of each of the parties;
- It identifies and assesses the contributions made by each of the parties;
- It identifies and assesses the future needs of the parties. In assessing the future needs of the parties, the Court takes into account various factors, some which include:
- The age and state of health of each of the parties;
- Where the other party has the care or responsibility of a child of the marriage who has not attained the age of 18 years;
- Whether any child support is being paid;
- The Court must make an overall assessment that is just and equitable in determining each party’s entitlements.
Are there procedures that apply before I can go to Court?
Yes. There are procedures which must be followed before making an application for orders in financial and parenting matters.
For financial matters, there are rules setting out ‘pre-action procedures’. These include the exchange of full and frank financial disclosure and a genuine attempt to settle prior to commencing proceedings in Court.
In parenting matters, it is essential to first obtain a Certificate from a mediator (see below) prior to filing an application for parenting orders unless there are exceptional circumstances such as violence or urgency.
How can I finalise an agreement I have reached?
The Family Law Act provides for the following Agreements to be entered into:
- S90B/S90UB – Before marriage/Before de-facto relationship
- S90C/S90UC – During marriage/During de-facto relationship
- S90D/S90UD – After divorce/After separation of de-facto relationship
The matters covered are predominantly broken into the following categories:
- Separate assets and liabilities;
- Joint assets and liabilities; and
- Spouse maintenance;
Alternatively, court orders can be prepared and filed with the Court.