Marriage & De Facto Relationships

The Family Law Act deals with matters relating to children, finances, restraining orders and injunctions for people who have been through a ceremonial marriage. However, if you are not legally married, you do not acquire the same rights, privileges and duties as if you were married. Many people believe that if they live together for a certain period, for example, six months, two years or five years that they are in the same situation as if they are married. This is not true. If you are informed of what your legal rights are, you can arrange to have your affairs dealt with based on the reality of your circumstances rather than an assumption of what you think they may be.

What is a marriage?

For the court to consider the marriage, it must be valid. The most common way of establishing the validity of a marriage is by producing the original or a certified copy of the marriage certificate.

What is a de facto relationship?

A de facto relationship refers to people who have not married but live together and have some form of financial dependence. As opposed to marriage, it can be difficult to prove the commencement date or even the existence of a de facto relationship if that relationship has not been registered with the NSW Registry of Births Deaths and Marriages.

A de facto relationship is defined in s 4AA of the Family Law Act. The law requires you and your former partner to have had a relationship as a couple living together on a genuine domestic basis. However, your relationship is not recognised a de facto relationship if you were legally married to one another or if you are related by family.

Applying to the Court to have de facto financial dispute determined

From 1 March 2009, parties to an eligible de facto relationship which has broken down can apply to the Family Court or the Federal Circuit Court to have financial matters determined in the same way as married couples.

You must apply for de facto financial orders within two years of the breakdown of your relationship. After this time, you need the Court’s permission to apply.

Before the Court can determine your financial dispute, you must satisfy the Court of all the following:

  1. You were in a genuine de facto relationship with your former partner which has broken down; and
  2. You meet one of the following four gateway criteria:
    • That the period for the de facto relationship is at least 2 years;
    • That there is a child in the de facto relationship;
    • That the relationship is or was registered under a prescribed law of a State or Territory; and
    • when assessing property or custodial claims in cases of a breakdown of a relationship, it is recognised that significant contributions were being made by one party and the failure to issue an order would result in a serious injustice.
  3. You have a geographical connection to a participating jurisdiction; and
  4. Your relationship broke down after 1 March 2009 (or after 1 July 2010 if you have a geographical connection to South Australia only); although you may be able to apply to the courts if your relationship broke down prior to the date applicable to your State.

Leaving a Relationship

Before you take the next step, consider all your options. Think about your requirements as an individual, both material and emotional, your children’s needs and your future financial circumstances. Seeking professional advice will assist you being informed and aware of the legal consequences of any decision you make when leaving a relationship.

As every situation is different, becoming aware of the legal effects of leaving the relationship may change the path you take through a divorce – or the decision to no longer go through with one. Knowing your legal rights will assist you to plan your life as soon as possible and assist in minimising the changes of the worse scenario from developing. Most importantly, it is critical that you do not pretend that the separation is not happening.

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