In most cases when you first enter into a de facto relationship, you don’t consider the impact this may have on your financial situation. Most people think that because they don’t get married and they don’t live in the same house as their partner that this will prevent their partner from being able to make a claim against their assets. However, this is not always not the case.
So what is a de facto relationship and how do I know if I am in one?
A de facto relationship is defined in Section 4AA of the Family Law Act 1975 which states that a person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family; and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
How do I know if we were living together on a ‘Genuine Domestic Basis’?
In order to determine whether parties were living together on a genuine domestic basis the court will take into consideration a range of factors including:
- How long you were together;
- Where you lived and how much time you spent together;
- Whether you had an intimate or sexual relationship;
- The degree of financial dependence or interdependence between you including any arrangements you may have had for financial support;
- The ownership use and acquisition of property;
- The degree of mutual commitment to a shared life together;
- Whether your relationship was registered under the Relationships Register Act 2016 (SA);
- The care and support of children; and
- Whether you held yourselves out to your family and friends as being in a relationship.
A It is important to to note that a de facto relationship can exist even if one of the parties is legally married to someone else or in another de facto relationship.
Does having been in a de facto relationship automatically give rise to property rights?
Put simply No! Before the court can determine your financial dispute, you must first be able to satisfy the court of all of the following:
- That you were in a genuine domestic relationship that has broken down; and
- That you meet at least one of the following four prerequisites:
- That your de facto relationship lasted at least 2 years;
- That you and your former de facto partner share a child:
- That the relationship was registered under the Relationships Register Act 2016 (SA) or comparable interstate register;
- Whether significant contributions were being made by one party and the failure to issue an order would result in a serious injustice to the other party;
- That you have a geographical connection to South Australia; and
- That your relationship broke down after 1 March 2009.
If you are in a de facto relationship and would like some advice about how to protect your assets in the event of a break up or, if you were in a de facto relationship that has broken down and you would like some advice regarding property settlement, call (08) 8451 9040 to make an appointment with one of our family lawyers today.