10 Common De Facto Questions

1. What is a de facto relationship?

This depends on when your relationship ended. Some are under State legislation and some are under Federal legislation. But all future de facto relationships will be under Federal legislation. A de facto relationship is now defined by legislation as being a genuine domestic relationship of at least 2 years in length. However, this can be made up of different periods together with one or more breaks, and you don’t necessarily have to live together 7 days a week. This definition includes for example: -same sex couples, or a mistress. There are other qualifying thresholds whereby your relationship can be classed as a de facto relationship.

2. Is there a time limit that applies to making a de facto property claim?

Yes, the time limit depends on when you separated. For relationships that fall under the State legislation you must claim within 12 months of the relationship If you are outside the time limit you should talk to us straight away as you will need to convince the Court that you may suffer serious injustice if they did not consider your claim. If your relationship falls under Federal legislation then you must apply within 2 years of the end of the relationship. There are provisions if you are out of time to apply for an extension of time. You should see us to discuss this in more detail.

3. What if we weren’t in a de facto relationship?

If you weren’t in a de facto relationship then you may have still a claim under the general law of trusts. The Court will consider a number of factors including how you and your partner intended to deal with your property and other assets in determining whether or not you have a claim.

4. Can we make an Agreement not to claim property against each other if we do break up?

Yes. You can enter into a written agreement called a Binding Financial Agreement setting out the terms in the event of any future separation which must be signed by you and certified by a solicitor with each of you having your own solicitor.

5. We were in a de facto relationship. What do we do about the children?

It does not matter whether you are married or in a de facto relationship, the same laws apply. Refer to 10 Common Children's Questions.

6. If we separate do I have a claim against the house or car even though it is not in my name?

Yes you may well have claim against either, as well as superannuation, investments or savings where these are held in your ex-de facto partner’s name. This will depend many factors including your financial and non-financial contributions during the relationship. De Facto legislation allows Orders for property settlement in the same way as for a marriage, regardless of whose name the property is in.

7. What if we agree to a settlement when we break up? Can this be put into an Agreement?

Yes. Some agreements can be done by an agreement only. Some can be done by an Agreement and an Order in the Courts. This will depend on the date of separation. Settlements by negotiations from now on can either be documented in an Agreement or a Court Order.

8. Do we have to go to Court if we don’t agree?

If you can’t negotiate an agreement then you will have to go to Court.

9. Can I get a super split as part of my de facto relationship?

In the case of separations that occur after the 1st July 2010 or if you can agree that the Federal Courts have power to make Orders for division of property, then yes, you can obtain a superannuation split.

10. What about custody of our children from a de facto relationship? Are they approached differently from children from a married couple?

The law for custody of children is the same for children from marriages or from a de facto relationship. See 10 Common Children’s questions.