De Facto Separation and Relationship

Defacto Relationships

Defacto couples have almost all the same rights as married couples. The Family Court Act recognises the existence of a defacto relationship whether the partners are heterosexual or same-sex, or even if one or both of them are legally married to someone else. In Western Australia, defacto couples are presently unable to split superannuation, unlike the rest of Australia.

While there is obviously no requirement for people in a defacto relationship to obtain a divorce when the relationship comes to an end, they have the same responsibilities for finance and child care as if they were married.

A defacto relationship begins without the legal process of a marriage ceremony, and a defacto partner may wish to leave it without legally finalising financial or children’s arrangement. This is unwise. Whilst you may separate amicably from your partner, what happens in a few years when your ex has a new partner who is unhappy with what you agreed? If your ex then seeks to formalise financial arrangements, all assets, even those gained after your separation, could be taken into account by the Family Court in dividing property. You could therefore leave yourself and future partners exposed financially by not formalising your agreement.

At Leach Legal we can help clarify the way forward. For a free, 15 minute telephone consultation, call us on (08) 9486 9733.

There are two ways that people can formalise the terms of their defacto separation:

  1. Property settlement, child care arrangements and defacto partner maintenance may be dealt with by filing an Application for Consent Orders at the Family Court.
  1. A Financial Agreement may be used, but this applies only to financial matters (i.e. not children). As there is no Court oversight of Financial Agreements, both parties must receive independent legal advice.

Either of these methods enables you and your ex to move on with your lives.

Two year limit

When a defacto relationship ends, there is a limit of two years within which you can apply for a property settlement or maintenance under the Family Court Act. After this two year period, settlement can only be made with the agreement of your ex, or with permission from the Court.

Defacto definition

The law says that the Family Court of Western Australia can make property settlement orders for defacto couples if you have lived together for at least two years or one party made a substantial contribution or you have a child together under 18 and not getting a property settlement would result in serious injustice. You must also show that one or both of you are in Western Australia on the day of making the application and you both lived in Western Australia for at least a third of the relationship.

You also have to either agree that it was a defacto relationship, or if you don’t agree you have to satisfy the Court that your relationship was the same as a marriage. This can be difficult to prove and there are many different elements to a defacto relationship. There are a lot of people, particularly young people, who live together as a couple, but would not consider themselves a defacto couple.

Typical questions you may have:

  • Would my relationship be considered by the Family Court to have been a defacto relationship?
  • Should I seek Consent Orders or opt for a Financial Agreement?
  • Why am I not able to obtain any of my partner’s superannuation?
  • Are my circumstances more complex, requiring a strategic legal approach?
  • Do I need to write a new Will, and if so, when should it come into effect?

Our team of experienced, professional, Perth Family Lawyers are here to help with your defacto relationship settlement. Phone us for a free, phone consultation on (08) 9486 9733.


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