Couples should be aware that they can be in a de facto relationship even if they are married to someone else or in another de facto relationship, according to a leading Queensland family law firm.
Many people are not aware that it was not necessary to be living with a partner on a full-time basis in order to establish that they were in a de facto relationship.
One of the questions frequently asked by people is “Am I in a de facto relationship?”
Most people think because they haven’t lived with their partner for an extended period of time, or because they are either married or in a committed relationship with another person, then they are not in a de facto relationship when they very well could be.
Under the current legislation it is not necessary for couples to be living together full time and it also irrelevant whether the parties are of the same or opposite gender.
Cohabitation prior to registered marriage has increased over the last 20 years.
According to figures released by the Australian Bureau of Statistics, in the early 1990s, just over half of all registered marriages were preceded by a period of cohabitation (56% in 1992). By 2010 it was almost eight in 10 (79%). De facto relationships are on the rise. In Queensland the number of couples living in de facto relationships has risen from 15 per cent to 20 per cent in the last 15 years. The majority of young adults in their 20s will live with a romantic partner at least once and more than 75 per cent of all marriages are preceded by a de facto relationship. This shift is attributed to an increase in the overall acceptance of “non-marital” relationships and in our current economy, sharing the bills makes cohabitation more appealing. It is important for couples to consider obtaining specialist legal advice if there is any doubt as to whether a de facto relationship exists and consequentially what either party might be entitled to in a property settlement under the Family Law Act. The Family Law Act 1975 outlines the following factors that may be taken into consideration by a Court when considering whether two people are in a de facto relationship:
- The duration of the relationship
- The nature and extent of their common residence
- Whether a sexual relationship exists
- The degree of financial dependence or interdependence, and any arrangements for financial support between them
- The ownership, use and acquisition of their property
- The degree of mutual commitment to a shared life
- Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship
- The care and support of children
- The reputation and public aspects of the relationship
Proceedings for financial orders (i.e. property settlement or maintenance orders) needed to be instigated within two years after the date of separation. It is also important to bear in mind that any agreement in relation to financial matters should not be allowed to rest on a ‘handshake’ basis and should be formally documented. Post 24 months following separation you will not be able to proceed with such an application without first obtaining the Court’s permission, which is not always easy to obtain.
We therefore strongly recommend that you approach a family lawyer well in advance of that anniversary to ensure that you are fully informed of your potential rights and obligations under the Family Law Act.