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Children of a de facto relationship

The laws relating to property settlement at the end of a de facto relationship have recently changed. For relationships that have broken down since 1 March 2009, the Family Court now deals with all of the legal aspects of the separation, including any:

Child Support Agreement,

Parenting Plan or

Parenting Order.

Child Support

Child Support can be sought via the Child Support Agency or a Child Support Agreement.

Parenting Orders. may be sought in the Local Court, the Federal Circuit Court or the Family Court. The principles that apply to the children of marriages also apply to the children of de facto relationships.

Binding Financial Agreements between de facto partners

Parties to a de facto relationship can make binding financial agreements. A financial agreement can be made either before the relationship begins at any time during the relationship or on separation. The agreement can cover matters such as:

  • responsibility for expenses,
  • classification of property owned by the parties as either joint or individual property,
  • the categorization of property acquired during the relationship as either joint or individual,
  • responsibility for debts and
  • the division of property and maintenance if the couple  separates.

If you have come to an agreement without legal advice, you should obtain advice before you sign anything. Mathews Family Law & Mediation Specialists can provide you with the advice needed to make an informed decision before you enter into a binding financial agreement. We can also assist by drafting the agreement for you to ensure that it covers all the legal requirements that you may not have thought of.

Mathews Family Law is a leading family law firm in Australia. Please contact us on 1300 635 529 to speak with our family and divorce lawyers today. You can also send through your enquiry online now and we will contact you shortly.

Maintenance in De Facto Relationships

De facto partners can now be compelled to pay maintenance to the other partner after separation under the same provisions that apply to separated married couples.

One difference for a de facto maintenance Order is that it will automatically end if the party receiving maintenance marries. In the case of the receiving party entering into a de facto relationship, the paying party can apply to have the Order set aside.

De Facto and Same-Sex Couples and Property

De Facto and Same-Sex Couples and Property

Same-sex couples, like all de facto couples, may turn to the courts for orders on division of property, superannuation and maintenance if the relationship breaks down.  The rules applying to de facto couples are somewhat different, though, than those applying to legally married couples.

Can all De Facto couples obtain these orders?

No! Couples can receive these orders from the court only if the court is satisfied that the couple meets one of the following criteria:

  • The relationship was at least two years long
  • The couple has a child together
  • One person made significant financial or nonfinancial contributions to the marital property or as a homemaker or as a parent and would be disadvantaged if the order was not granted
  • The relationship was registered (in those states and territories where such registration is possible)

Does it matter where you live?

Yes! The laws apply to de facto couples who have a geographical connection with New South Wales, Victoria, Queensland, South Australia, Tasmania, the Australian Capital Territory, the Northern Territory, Norfolk Island, Christmas Island or the Cocos (Keeling) Islands.   Geographical connection means that at the time the relationship broke down, the couple lived in one of those states or territories.

A court may still give orders on property division, superannuation and maintenance if:

  1. The couple lived in one of the above States or Territories during at least one third of their de facto relationship or;
  2. The person applying to court for the order made substantial financial or nonfinancial contribution in one of the above States or Territories or;
  3. One of the partners ordinarily lives in one of the above States or Territories at the time the application to court is made.

Does it matter when the relationship broke down?

Yes! The Commonwealth laws allowing de facto couples to divide property came into affect only on August 1, 2009 (and in South Australia only on July 1, 2010).  Therefore, in those states and territories where they apply, it’s only for couples whose relationship broke down after those dates.  If a relationship broke down before August 1, 2009 (or July 1, 2010 in South Australia), the laws of the particular State or Territory apply, unless both parties request in writing that the new laws apply.

One or both parties must apply for these orders within 2 years of the breakdown of the de facto relationship.

Can a couple make an arrangement on their own?

Definitely!  De facto couples can make their own arrangements regarding their property, including debts, assets, superannuation and spousal maintenance. 

Financial agreements are covered under Part VIIIA of the Family Law Act of 1975.  These agreements may refer to:

  1. Property and financial resources and how they will be dealt with if the marriage breaks down or;
  2. The maintenance (financial support) of either of the spouses during and/or after the marriage or;
  3. Any other matter related to (1) or (2) above

This agreement can be made at any time during the relationship or after it breaks down (but you must apply for the orders within two years of the breakdown – see above)  and it can be formalized by the court by applying for a consent order.  Once a consent order is made, it has the validity and enforceability of a court order issued by a judge.  Both parties must apply for a consent court order for a property agreement by completing the Application for Consent Orders.  You do not need to go to court to apply for consent orders.

This financial agreement is only binding if:

  1. both partners signed it and
  2. both partners received independent legal advice about the agreement.   Partners are not allowed to receive advice from the same lawyer.

For further information on property division in the court see “Property and Money”.

Can De Facto Couples Turn to the Courts on Issues of Property, Maintenance and Superannuation?

De facto couples can make their own financial arrangements, like any other legally married couple in Australia, or they can turn to the courts to receive a court order. In order to turn to the courts, the de facto couple must meet one of the following conditions:

  1. The relationship existed for at least two years OR
  2. The couple has a child together OR
  3. One person made significant financial or nonfinancial contributions to the relationship and would be at a disadvantage if no order was granted OR
  4. The relationship was registered

What is a Legal De Facto Relationship?

De Facto relationships are defined in Section 4AA of the Family Law Act 1975. A relationship is de facto if:

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

Who gets the children?

Hi, I’m Vanessa Mathews from Mathews Family Law & Mediation Specialists. Today’s topic is children and parental responsibility. I’m going to provide you with some of the basic information you should have before you begin discussing child custody with your spouse or partner.

I also suggest you read the information provided on our website at mathewsfamilylaw.com.au and I highly recommend that you speak with a lawyer before signing anything or filing any court documents.

Often I find that people forget the most important part of their parenting dispute, which is of course, their children. Unless one parent is a physical or emotional danger to the children, most children are better off in the long run maintaining a close and meaningful relationship with both parents. The less fighting between you, the better it is for your children.

Before you begin discussing the children with your partner or spouse, there are a few important terms to remember. First, there’s equal shared parental responsibility. Australian law changed a few years ago and today, parents are generally given equal shared parental responsibility for their children. This doesn’t necessarily mean that the children live in both homes equally, but rather that both parents have the same rights in making major decisions for the children.

The other important term is custody which means who the children live with. There is primary custody where the children live more with one parent than the other, then there’s shared care, where the parents have more shared time with the children. You and your partner can also come up with your own parenting agreement, which is an arrangement for taking care of your children.

A good parenting agreement should be as detailed as possible. It should include where the children will be on each days of the week and during the school holidays, how major decisions for the children will be made, such as the religion they have to be raised in and the schools they will attend. The agreement should also look towards the future. For example, by anticipating the changes from primarily to secondary school, extra- curricular activities and healthy expenses such as orthodontics.

A good parenting agreement will also have a way for resolving disputes. So, when there is a disagreement, there is a clear way to solve the problem. For example, some couples require that they first sit down and talk to each other to come to a compromise. Others might decide that it’s best to turn to a mediator or family dispute resolution practitioner.

You can submit this agreement to the court for approval, which makes it binding on both sides this is called a consent parenting order or you can opt for a parenting plan, which is not binding on either of you. If you can not agree between yourselves, you can bring the dispute to the court and a judge will decide for you.

We believe it’s always better for parents, and not the judge, to decide about children as it is you who knows what’s best for them. The co-parenting calendar on the Mathews Family Law & Mediation Specialists website will help you and your spouse or partner to plan your children’s living arrangements. I’m Vanessa Mathews at Mathews Family Law & Mediation Specialists.

When Does a De Facto Relationship Begin and End?

The law in Australia clearly outlines the criteria of a de facto relationship.   Section 4AA(1) of the Family Law Act, 1975 says that two people are in a de facto relationship if they “have a relationship as a couple living together on a genuine domestic basis”. Section 4AA(2) helps the courts determine if indeed a de facto relationship exists by allowing the judge to consider a number of factors, including the duration of the relationship, whether a sexual relationship exists and the degree of mutual commitment to a shared life.

In a recent court case, Kale & Karmel, the Family court was asked to determine exactly when the relationship began and ended, in order to divide the joint property fairly.   In this case, the applicant, Kale, was a 58-year-old man with two grown children from a previous marriage. He received a Ph.D. in 1997. Until about 2005, he was also caring for his two children on a less equal basis with his ex-wife. The respondent, Karmel, completed a law degree in 2000, worked for several years in business and law, and in April 2005 opened her own law practice. There were various questions about the property – a shared home, superannuation, cars – but the larger disagreement centered around when the de facto relationship between the applicant and the respondent started and when it ended.

Kale argued that the relationship started in mid-2002 and ended in October 2009, after their physical separation. Karmel, on the other hand, argued that the relationship commenced four years earlier in 1998 and ended only in January 2010. The court was forced to look at a number of criteria in order to determine just how long the relationship actually did last.

The court reference earlier cases, concluding that for the purposes of property issues, it must be shown that the party’s lives have merged to the point that for all intents and purposes, they are living together as a married couple. Based on this understanding, the magistrate in Kale & Karmel found that the de facto relationship commenced in late 2001.

The magistrate considered a number of factors that indicate that the de facto relationship did not begin until late 2001. First, although the relationship started in 1998, the parties maintained separate homes until March 2002. Kale lived in a home he had purchased some years earlier and Karmel continued to rent elsewhere.

Second, while Kale resided in this original home, he maintained equal care of his children. The magistrate accepted that this meant that a central part of Kale’s life, mainly his children, did not yet become a part of his relationship with Karmel.

Third, the couple kept separate finances until March 2002, maintaining financial independence. Proof of this independence was a loan that Kale gave to Karmel and which was paid back shortly after it was given. The magistrate found this act “contrary to the notion of financial interdependence”.

Fourth, throughout 2000, Karmel pursued a job opportunity that would have required a move to Canberra. Since Kale’s children remained in Brisbane, there was no question of his relocating. The respondent also told the applicant that she hoped to find an overseas posting. The magistrate held that Karmel’s decision to consider and pursue such a professional move ran “contrary to the existence of a de facto relationship”.

Taken together, these factors indicate that the parties were indeed in a relationship, but not a de facto one, since their finances remained separate, they each lived in a different home and they had no other mutual assets.

The court held that the de facto relationship actually did begin in late 2001 because at that time the couple decided that Kale would help Karmel financially so she could acquire a home large enough to accommodate him and his children. For the magistrate, this was a mutual decision to jointly acquire property, indicating a real merger of their lives. Significantly, the magistrate did not consider when the property was actually acquired – early 2002 – but when the parties made the decision to buy the property, late 2001.

The termination of the relationship was simpler for the magistrate – it took place when the respondent left the joint home in October 2009. In total, the magistrate found that Kale and Karmel had maintained a de facto relationship for a period of some eight years, from late 2001 through late 2009.