Instituting property settlement proceedings in the Family Court either means that you are in a married relationship or in a de facto relationship. Often unmarried couples are not even sure if they are classified as being in a de facto relationship. In the event of a relationship breakdown, and with parties wanting to know if the other is eligible for assets in property division, a de facto relationship must be present.
The Family Law Act depicts a de facto relationship to be a couple, either of the same or opposite sex and having a relationship, and:
- The parties are not legally married to each other; and
- The parties are not related by family; and
- The parties live together on a genuine domestic basis
Determining a couple living together on a ‘genuine domestic basis’, certain circumstances of the relationship will be considered by the court:
- Duration of their relationship;
- Nature and extent of their common residence;
- If a sexual relationship exists;
- The degree of financial dependence or independence;
- The ownership, use and acquisition of their property;
- Their degree of mutual commitment to a shared life;
- If the relationship has been registered in a state requiring this (not required in South Australia);
- The care and support of the children; and
- The reputation and public aspects of their relationship.
The court will consider a relationship of 2 years (either a straight two years, or an on-and-off relationship totalling two years) to be a de facto relationship. A child of the relationship will also deem it to be de facto, as will substantial financial or non-financial contributions to the other party. If the relationship has indeed been registered in Queensland, Victoria, New South Wales, Tasmania or the ACT, a clear de facto relationship exists.
It is important to recognise the possibility and the eventuation of a de facto relationship before considering taking legal proceedings. Obtaining legal advice prior to entering into a de facto relationship can be helpful in assisting in the protection of assets. Conversely, seeking legal advice in the breakdown of a de facto relationship is necessary is dividing the property accordingly. We are experts in practicing family law, for both married and de facto couples. Call our experienced Adelaide lawyers to discuss your concerns and options on 08 7132 5636.