What are the differences between married and de-facto under family law?
Historically there were significant differences between the rights of couples who were married and couples who were not.
Changes were made in the Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008 however that significantly altered the law (notably superannuation). Prior to this, only those couples who were married were able to have their property interests managed by the Family Law Act.
What is the situation now?
Marriage is not as common as it once was. More and more couples are choosing not to get hitched but are no less committed to each other. We also add same sex couples to the mix given that our current laws do not allow them to marry. Accordingly, questions are raised as to what effect this has, if any, on your property and rights to that property.
The reality is, the differences between being married and in a de-facto relationship are very little and the law makes provision for both types of relationships to be considered.
On the face of it, it is an easier course if you are married as all you must do to prove so is produce a marriage certificate. With a de-facto relationship, you have to prove you were in such a relationship if challenged.
The court will use numerous criteria to ascertain whether or not you have been in a de-facto relationship. Those circumstances may include any or all of the following:
- 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; and
- The reputation and public aspects of the relationship.
In the event that it is agreed that you are in a de-facto relationship then the jurisdiction of the Family Law Act allows you to pursue a property settlement with your former partner.
Time Limits Vary
Where you are married, you have one year from the date of your Divorce to finalise and divide your assets.
If you are in a de-facto relationship, you have two years from the date of separation to finalise and divide your assets.
In short, regardless of your relationship type, you should attempt to reach a settlement on your property matters as soon as possible after you have separated.
The end result of this analysis is that it now matters very little to the courts whether you were married or in a de-facto relationship, however, the importance of the time limits outlined above should not be underestimated. If you need advice on settlement of your property or whether or not the court may see your relationship as de-facto in nature, contact one of our experienced family lawyers today.