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De-Facto Separation Agreements in Australia

By 17 April 2013Family Law

Under Section 4AA of the Family Law Act 1975, de-facto relationship is recognised in Australia. In state laws, it is referred to as “domestic partnership which refers to a relationship where two individuals not related to each other lived together as a couple on a genuine domestic basis.

Sometimes, the partners agree on a sexual or no sexual relationship, but consider the other person as their partner to whom he/she is not married. The partners may or may not be of the same sex.

Generally, de-facto relationship is borne out of personal agreement and does not require any formal declaration to have the relationship recognised as such. The relationship is considered de-facto automatically once the criteria is met. However, in some instance a formal declaration from a court is required for legal purposes.

When the Family Court and the Federal Magistrates Court steps in

Significant changes in law happened on 01 March 2009 where de-facto relationships are now dealt in the same way as regular marriages. It is now treated like marriage under the Family Law where the Family Court and the Federal Magistrates Court can step in and make relevant orders following the breakdown of eligible de-facto relationships.

The partners are given certain rights and privileges in some areas in law over which the Courts will have to decide the issues affecting the couple’s finances, property, pensions and benefits, care for children and income tax deductions as well child and spousal support when the couple decides to end the relationship.

Separation of de-facto relationship

According to the Act, the relationship is ended when the parties in a de-facto relationship stopped to live together as a couple in a domestic relationship. The initiative may come from one spouse who must communicate to the other party his/her intention to end the relationship or this can be a decision reached by the couple jointly.

Separation can be actual or constructive where the couple may still be living under one roof, but are no longer living as intimate partners separation under the one roof. This requires proof from third parties that the couple is now actually separated. Usually, an Affidavit from third parties may be presented for this purpose.

When the Court decides

The Family Law Act 1975, Sections 90SM(4) and 90SF(3) lay down the general principles for the Courts to consider in deciding financial disputes after the de-facto relationship breaks down. However, it does not provide a concrete rule on how the judicial orders are to be made. The Courts will receive evidences and hear the case and decide what is fair, just and reasonable based on the facts involved in the case. This new law applies to all de-facto couples in all Australian states and territories except in Western Australia.

The Family Law Courts can make financial orders if the following requirements are met:

If the de-facto relationship had survived for at least 2 years;
if a child is born out from the de-facto relationship;
if serious injustice will come to any of the partners if the order is not made; or
if the de-facto relationship is registered in a State or Territory requiring valid registration of relationships.

Normally, the Court will decide after all the evidence is heard. Any financial agreement for the division of assets, support and care of children reached by the parties may be formalised by way of Consent Agreement, Court Order or by a Binding Financial Agreement. The parties of a de-facto relationship must apply for financial orders within two years from the date of breakdown of their relationship; otherwise, early application for financial order will require permission from the Court.

Find legal help

If you have any queries in relation to your de-facto separation and wish to seek advice on your rights, LawBuddy can help.