Law Talks Episode: Are you in a de facto relationship? What you may be entitled to if you separate

Robyn: Good morning and welcome to another edition of law talks here on 4CRB. Now here’s a question for you, if you’ve been seeing someone for several years, maybe even living together, sharing bills and spending holidays with each other’s families, are you in a de facto relationship, or are you just friends or keeping it casual?

It might sound like a light-hearted question, but in the eyes of the law the difference can have major consequences. When a relationship ends, we often see one person claim they were never really together, while the other is left shocked to discover they actually have the same legal rights and obligations as a married couple.

Joining me today to unpack what a de facto relationship really means is at Attwood Marshall Lawyers Family Law Associate, Laura Dolan.

Laura, thanks for joining us this morning.

Laura: Thanks for having me, Robyn.

Robyn: Well, let’s start at the beginning. What actually counts as a de facto relationship under the law?

Laura: Well under the Family Law Act, a de facto relationship exists when two people of any gender live together on a genuine domestic basis, and they’re not legally married.

But there’s no single test as to what a de facto relationship is, or what it consists of.

But the court looks at several factors. Like how long the relationship lasted, whether you lived together, whether you shared finances or property, if you had a mutual commitment to a shared life, whether you were intimate or exclusive, and how you presented yourselves publicly, so for example as partners at a social event or in front of family or friends.

It’s really about the reality of the relationship, not what you call it. You can tell people we’re not together, but if your lives intertwine like a couple, the court might see that differently.

Robyn: Have you had cases where people have been together for many years, but one person claims we were never a couple? How common is that?

Laura: Absolutely. And it happens more than you’d think. We see cases where people have been together for over a decade, but when it ends, one person denies the relationship ever existed because they want to avoid a property settlement claim. The courts don’t just take someone’s word for it. They need to look at objective evidence as a court is a place of evidence.

They look at things like joint bank accounts or bills and how they were paid, shared leases or mortgage documents, travel bookings, even Christmas cards signed together, and of course social media posts with photos, etcetera.

So, if you’ve shared a life together in the eyes of others, that’s usually enough to suggest a de facto relationship existed, even if one partner later says it didn’t.

Robyn: So, if a de facto relationship exists and the relationship comes to an end, what does that mean legally?

Laura: It means that both people have similar rights and responsibilities to a married couple when it comes to property settlements and spousal maintenance.

So, if the relationship breaks down, either party can apply to the family court for a property division. This is to determine who gets what assets, how those liabilities are to be shared, and potentially if there’s a need for one party to pay the other spousal maintenance.

But, it is to be noted that in order to be eligible to make an application to the court, the parties do need to be together in a de facto relationship for at least two years, unless there was a significant contribution to the assets, or a child of the relationship. But noting once two parties have separated, there is a 2-year limit after that to bring a claim. So regardless, it is important to act promptly.

So, if the courts find that you weren’t in a de facto relationship, then you can’t access those property settlement rights under the Family Law Act, meaning you could walk away with nothing even years after sharing a life together.

Robyn: For listeners who might be in a long-term relationship but aren’t sure where they stand legally. What’s your advice?

Laura: Well, it’s a good idea to have open conversations about finances and expectations. If you want to protect your assets going into a new relationship or even in a current one, a binding financial agreement is always a great option. It’s similar to what they call prenup but can be entered into at any time and outlines how property will be divided if the relationship ends.

Robyn: I think most people associate financial agreements like prenups with celebrities or high net worth couples, but who can actually get a binding financial agreement? And how does it work in practise?

Laura: Anyone can have one and you know it’s not just for the wealthy. A binding financial agreement can be done before, during or even after a relationship ends. Both parties must get independent legal advice for this document to be binding, and it needs to be properly drafted to be valid. It’s really about certainty and knowing where you stand if things change in the future.

Robyn: So, some people might worry that these kinds of agreements don’t hold up in court. How enforceable are binding financial agreements?

Laura: A binding financial agreement is enforceable under the Family Law Act, you know, provided that it’s met the strict legal requirements. Like I mentioned, both parties need to go and get independent legal advice before signing, and each lawyer must sign a certificate confirming that this advice was given. A binding financial agreement can be set aside in limited circumstances. So, for example, if there was fraud or duress or a non-disclosure of assets, or even if the agreement wasn’t done properly so, the court may have grounds then to set it aside.

But in the end of the day, no one can be forced to enter a binding financial agreement. It needs to be both parties willing to enter into it.

Robyn: Laura, this is such an interesting topic and I’m sure a few people listening right now might be wondering whether their relationship could actually be considered a de facto.

Laura: Yes, it surprises a lot of people. The law looks at the substance of the relationship, how you actually live your lives and not just how you label it. So even if you’ve never married, you may still have the legal rights and obligations similar to a spouse. So, the best thing you can do is get advice and understand where you stand if that relationship comes to an end.

Robyn: Yeah. The last thing you want is a nasty surprise. Laura, thanks for unpacking what can be a surprisingly complex area of law. But as we’ve heard today, understanding where you stand now can save a lot of confusion and stress later on.

Laura: Absolutely. It’s important to get that advice and know where you stand. But thank you, Robyn.

Robyn: You’ve been listening to law talks here on 4CRB, which you can hear every Friday morning from 9 o’clock.