Rights of de facto relationships in Australia explained

A de facto relationship is an increasingly common relationship status in Australia. Societal norms and expectations are constantly evolving and changing; de facto couples now make up 20% of all relationships, up from just 6% in 1986.

However, de facto relationships differ from marriages in a variety of ways, perhaps the most obvious being how they are identified. A marriage is ‘black and white’ – there will have been a valid ceremony and a certificate proving the marriage. De facto relationships are not always this clear-cut.

It is therefore important to understand what constitutes a de facto relationship, the legal rights and responsibilities which come with it, the parenting aspects of a de facto relationship, and the consequences of separation.

What defines a de facto relationship?

A de facto relationship, according to the Family Law Act 1975 (Cth), is a relationship between two adults who are not married, not related by family and are in a genuine domestic relationship. Their relationship can satisfy any number of the following factors:

• duration;
• the nature of the common residence;
• a sexual relationship;
• financial interdependence;
• ownership of property;
• degree of mutual commitment to a shared life;
• children;
• registration of the relationship; and
• the public nature of the relationship.

A widespread misunderstanding is that the relationship must have been ongoing for two years; whilst this is a common determinative factor, it isn’t the sole factor. There is, in fact, no sole determining factor.

Can a de facto relationship be legally recognised if one or both partners are still married to someone else?

Yes, a de facto relationship can be legally recognised if one or both partners are still married to someone else.

The simplest example of this is as follows:

• A married couple separate, do a property settlement, but never actually divorce.
• Over the following years, one of the parties finds a new partner, has a de facto relationship with them, after which they separate.
• There is no barrier to this relationship being recognised as a de facto relationship, purely on the basis of one of the parties being married to a third party.

However, there are also rare examples of a person being in a de facto relationship with one person, whilst also being married and not separated from another person.

The Court will consider the Family Law Act (FLA) in determining whether or not the particular circumstances of the parties reflects the existence of a de facto relationship or not.

What tax benefits am I entitled to as a de facto partner?

De facto partners are typically treated, for all intents and purposes, as a married couple for taxation purposes. If specific tax benefits are sought, it is important to seek tax advice from a qualified accountant.

Some of the tax benefits that you may be entitled to are:

• Private health insurance rebates;
• Family Tax Benefits (A and B); and
• Superannuation splitting.

However, if you are treated as a de facto couple for taxation purposes, in turn there may also be some thresholds that you exceed when your incomes are combined, such as the Medicare Levy Surcharge. As always, it is recommended that you seek taxation advice.

Will I be the legal parent if I have a child with my de facto partner?

Yes, it is highly likely that you will be deemed the legal parent if you have a child with your de facto partner.

The FLA includes a subdivision called ‘presumptions of parentage’ that are as follows:

• Marriage.
• Cohabitation. That is, parentage is presumed where a child is born to a woman and, for a specified period of time before the birth, said woman cohabited with a man.
• Registration of birth. That is, parentage is presumed where a person’s name is registered on a child’s birth certificate.
• Findings of courts. That is, parentage is presumed where a court makes a finding that a parent is indeed a parent of a child, or makes a finding that could not have been made unless the parent was a parent of a child.
• Acknowledgements. That is, parentage is presumed where a man executes a document acknowledging that he is the father of a child.

The FLA also outlines that these presumptions may be rebutted upon the balance of probabilities. Should various conflicting presumptions be in existence, it is a matter for the Court to determine which presumption is most correct.

It should be noted that the following subdivision in the FLA relates to parentage evidence, and the use of a parentage-testing procedure to assist with ascertaining paternity.

Can I adopt my de facto partner’s child who they have had with another person?

Typically, no, you cannot adopt a de facto partner’s child who they have had with another person. However, the answer is not always quite this simple.

You may be entitled under the FLA to seek orders to spend time with a child of yourr de facto partner if you separate or you may be a support person and/or provide evidence, without being a party yourself.

However, adoption differs to parenting orders, time arrangements, and decision-making responsibility. It is a state-based issue.

The most likely situation where adoption by a stepparent occurs is where the other biological parent has passed away, is completely absent, or consents. Aside from this, it is strongly recommended that proactive legal advice be sought from an experienced lawyer.

What am I entitled to if my de facto partner dies?

If your de facto partner dies, any entitlement is likely to be subject to the estate planning arrangements, if any, that they left behind. The one exception to this is where you had separated from your de facto partner and an application was in progress with the Court, in which case this would be continued.

If your de facto partner died intestate (without a valid will), then the laws of intestacy would apply. In NSW, this would typically see the de facto partner receiving the whole of the estate, provided that there are no children of the deceased, or where the only child(ren) of the deceased are also children of the de facto partner.

However, where there are children of the deceased who are not also children of the de facto partner, the de facto partner would receive the deceased’s personal effects, a statutory legacy (a lump sum cash amount) and a portion of the residual estate.

If your de facto partner died with a valid will in place, then the estate will be distributed in accordance with this will.

Regardless of whether or not your de facto partner died with a valid will in place, a surviving de facto partner has an entitlement to make a family provision claim under the Succession Act.

What property settlement rights apply to a de facto relationship?

As a former de facto partner, you are entitled to apply for property settlement orders in relation to your de facto relationship, provided that the Court is satisfied that there is jurisdiction to make orders (i.e. that a de facto relationship existed).

Once jurisdiction is established, the Court would consider what a just and equitable outcome would be.

These sections of the FLA reflect the important decision of Stanford & Stanford that set out the four steps to a property settlement, being:

1. Identifying and valuing the assets, liabilities, superannuation and financial resources.
2. Assessing the contributions of each party to the relationship.
3. Assessing the current and future circumstances of each party to the relationship.
4. Considering whether the outcome is just and equitable.

Your property settlement rights as a de facto partner are virtually identical to those of married parties.

However, it is important to bear in mind the de facto property settlement time limit, being 2 years from the end of the de facto relationship.

Am I entitled to spousal maintenance as a former de facto partner?

Again, as a former de facto partner, you are entitled to apply and seek spousal maintenance from your de facto partner, provided that the Court is satisfied that there is jurisdiction to make orders (i.e. that a de facto relationship existed).

However, your inherent entitlement to receive spousal maintenance is subject to either of the consent of your de facto partner or, alternatively, the discretion of the Court.

There is no default sum of spousal maintenance or otherwise that a partner may receive.

Can I claim child support from a former de facto partner?

Yes, you can make an application to claim child support from a former de facto partner for a child of your relationship. If the child is not from your relationship, you should seek legal advice. Child support can be arranged by agreement between parents or, in absence of agreement, by way of a child support assessment. An application must be made to the Child Support Agency via Services Australia for such an assessment. The assessment is largely based on the incomes of the parents and the proportion of time that each parent has the care of the child.

The Agency has a handy calculator.

Contact Turnbull Hill Lawyers

De facto relationships can be more complicated than marriages given their lack of a definitive definition. There are many rights and entitlements that can come with being part of a de facto relationship, as well as several misgivings.

Expert legal advice can help to ensure that you are aware of your circumstances and what you may be entitled to, so that you and your loved ones are protected as best as you can be. If you are in a de facto relationship, or have just separated, and are curious about your rights and entitlements, make an appointment with one of the experts in either of our Family Law or Wills & Estates teams at Turnbull Hill Lawyers.