If you are reading this then you will need to download the flash plugin before you can view this animation.

logo

Family Law Newsletter

Same difference? De facto relationships v marriages

A common perspective in modern times is that there is not much difference between de facto and marriages except "for a piece of paper". But does this thought ring legally true?

What is a de facto relationship?

In Western Australia, a de facto relationship is where two people live together in a marriage-like relationship but are not legally married. De facto relationships have been recognised in Western Australian law since 2002.

Factors which point to the existence of a de facto relationship are:

  • The length of the relationship;
  • Whether you have lived together and for how long;
  • Whether there is a sexual relationship;
  • The extent that each of you were financially dependent on the other person;
  • How you have chosen to own property and whether you own it together;
  • The amount that each of you is committed to a shared life;
  • Whether you care for or support children;
  • The public aspects of your relationship.

What about same sex relationships?

Under Western Australian law, de facto relationships include same-sex relationships. Please note that even though under Western Australian law, same-sex relationships are treated as de facto relationships, under Commonwealth law, same-sex relationships are not always recognised and treated in the same way as other de facto relationships (i.e. payment of child support). Legal advice is recommended.

Dividing property – are there different rules?

De facto relationships eligible for a property settlement must:

  • Have ended on or after 1 December 2002;
  • One of the parties lives in WA and for at least one third of your relationship you lived in WA;
  • You were in a de facto relationship lasting at least 2 years; or
  • You have a child under 18; or
  • The person applying for the orders has made substantial contributions to the property or welfare of the family and would suffer serious injustice if orders were not made.

If you do not fit within these categories the starting point is that the legal owner of property is the person whose name the property is in. If both parties agree, you may be able to negotiate an agreement. Legal advice is recommended if you think you have made substantial contributions to the property or welfare of the family.

The Family Court of WA applies the same principles to property settlements of both marriages and eligible de facto relationships, including spousal maintenance.

Superannuation

Superannuation may be included in a property settlement for people who were married. If you were not married, you are not able to seek orders in relation to your or the other person's superannuation policy for property settlement. Even though superannuation is not included as property for de facto couples it is still considered when the Court looks at the future needs of parties, as it is a financial resource that can be accessed in the future.

Time limits

If you were married, you have 12 months from the date your divorce becomes final. You can get a property settlement before getting your divorce. Although you can work out a property settlement almost any time after separation (as the time limitation period does not start until your divorce is finalised), it is recommended to sort out arrangements as soon as possible. This is because asset values can change over time and valuations are best done close to when the parties separate.

If you were not married, you should get legal advice on the time limits, as they range from 1-2 years depending on the date of your separation.

Archive

What's in a name?

Divorce or annulment?

Supperannuation in Family Law

How Can the Law Protect You from Domestic Violence?

But the children don't want that!

Parents - Feel supported with child support

Finding out with Family Law: Parentage Testing

Division of Assets and Spousal Maintenance Requests

Family Law: What does that Mean?

Artificial Insemination and the Meaning of "Parent"

Inheritance and Divorce

Property Issues on Divorce

But I am a responsible parent!

O'Sullivan Davies

Get in Touch

  • In order to promptly address your enquiry we require the above mandatory information.
  • If you are unable to provide this, please contact our office on 08 9426 4711.
  • Thank you
  • Enter Code
  • Click here to generate new characters