Podcast
SBS Australia Explained – De Facto Relationships
Interviewer: Maram Ismail (MI)
Interviewees: Nicole Evans (NE), Damien Greer (DG) and Fiona Bennett (FB)
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MI: There are various types of relationships that couples can have. Marriage is a well-known type of relationship that involves multiple legal procedures. However, in Australia, two people who live together can still have their relationship legally recognised, even if they’re not married.
NE: A lot of people think that you have to be in a relationship for two years to be de facto. That’s not true. A lot of people think if you’re in a de facto relationship after two years, you’re suddenly entitled to 50% of the other person’s assets.
MI: Welcome to this episode of Australia Explained. I’m your host, Maram Ismail. Today we explore the legal entitlements of de facto relationships and why it is so important to have them formally registered. According to the latest census, over two million individuals in Australia were recorded as being in a de facto relationship but what exactly is a de facto relationship and when does the law recognise it?
The definition of a de facto relationship is broadly outlined in the Family Law Act, describing it as two persons of the same or opposite sex living together on a genuine domestic basis. The process and requirements for having your relationship recognised as a de facto depend on your state or territory of residence. For example, de facto relationships are registered under the Relationship Register Act 2016 in South Australia. Once reported, this automatically recognises the law anywhere in Australia. Nicole Evans, a Sydney lawyer with expertise in family law highlight some benefits of registering your de facto relationship.
NE: Firstly, it provides an automatic recognition at law that they’re in a de facto relationship, so there’s no need to have to prove that first instance. That might assist people who are trying to get Visas in the event the partner passes away. It also may affect them from an Estate perspective to show that they were in a de facto relationship for medical purposes, for next of kin, if decisions need to be made.
MI: Ms Evans explains that registering a de facto relationship is also relevant from a legal parenting perspective, specifically for same-sex couples.
NE: Particularly for women, the Family Law Act requires for the non-birth mother to be recognised as the other legal parent. It means that both parties have to have been in a de facto relationship at the time of conception of the child. So registering of a de facto relationship provides that automatic legal status.
MI: In cases of separation where the relationship was not formally registered and one of the two former partners makes a claim before the Court, such as for asset division or partner maintenance, several factors are considered to determine whether a de facto relationship exists. These factors include the length of the relationship, its public reputation, any joint finances, the persons of a sexual relationship, and whether the couple has been living together. According to Ms Evans, the criteria the Court relies on depend on the specific case and she outlines some common misconceptions about what constitutes a de facto relationship.
NE: Alot of people think that you have to be in a relationship for two years to be de facto. That’s not true. Alot of people think if you’re in a de facto relationship after two years, you’re suddenly entitled to 50% of the other person’s assets. Again, that’s not true. Alot of people think you have to be living together as well to be in a de facto relationship, which is not true. There’s case law that says you can be in a de facto relationship but live in separate houses.
MI: There is even case law that acknowledges the existence of a de facto couple even if one of the persons is legally married to someone else. Damien Greer, a Brisbane lawyer specialising in family law explains.
DG: It doesn’t happen very frequently. It is more the case of where you have people who have been married but never divorced and then they move into a de facto relationship. Think about it from this context. You can have a husband say, who’s in a married relationship. That relationship breaks down and no one applies to the Court for a divorce. The husband then moves into another relationship with someone else and is not married to them but lives with them for five, six years. He is both married and he is also got a de facto partner at the same time.
MI: Disputes about children from a de facto relationship that has broken down, such as parenting arrangements and child contact are handled by the Court in the same way as they are for married couples. Applications for Court Orders related to financial matters, including the division of assets and partner maintenance must be submitted within two years of separating from the de facto partner unless exceptional circumstances allow for an exception.
DG: You can seek leave of the Court to proceed out of time but there are other issues that you then have to address and it’s much more complicated, and so it really is a very good idea to bring an application within the two year period.
MI: Alternatively, former partners must reach a mutual agreement and ensure that the agreement is legally valid.
DG: The really important thing is it must be properly documented and the two ways of documenting it are either asking the Court to make Orders by consent resolving financial matters, or you can enter into a Financial Agreement.
MI: Ms Evans explains, like married couples, de facto couples can enter into a Binding Financial Agreement at any point during their relationship. It’s important to note that this type of arrangement can only be prepared by a legal professional.
NE: So it documents what you’ve both brought into the relationship and it determines then what the agreement is of how the assets and liabilities would be split between you in the event of a separation, and you need to see a lawyer to get these documents drafted. The lawyer has to sign a document that says they’ve provided you with independent legal advice on the advantages and disadvantages of entering into this type of agreement.
MI: De facto couples who separate can also access Mediation services to reach an agreement for disputes concerning children and financials. Fiona Bennett a Relationships Australia Counsellor says Mediation can help the two parties reach a fair agreement while not getting carried away by their emotions. The process of Mediation is voluntary. When one party initiates it, the service contacts the other person to ask if they are willing to participate. If both parties agree to proceed, a screening process follows to get a sense of the relationship history, including any risk factors. Ms Bennett explains.
FB: What we are wanting to do in that is make sure that we can really screen and understand whether these two people will be able to sit in the same room, or if they can’t sit in the same room, can they at least communicate via a Mediator. We really screen for risk in that respect so that we make sure that any sense of family and domestic violence or kind of coercive control is really known before the Mediation process starts.
MI: Ultimately, the benefit for separated couples resorting to Mediation is that they can work out their disputes in an empowering manner.
FB: If you start in Court, it becomes by default a very adversarial and argumentative process. Whereas if you’re coming through Mediation, you’re finding out what you are able to see from the other one’s point of view. It provides education along the way so that actually people feel equipped to handle the situation themselves rather than just sitting back and being told what to do.
Thank you for listening to this episode of Australia Explained. Written and produced by Zoe Fomado and hosted by me, Maram Ismail.
This was an SBS Audio podcast. For more Australia Explained stories, visit sbs.com.au/australiaexplained.