De facto and personal relationships?
Will the law recognise my de facto, or close personal relationship?
The law will recognise your relationship if you and your partner:
- live together as a couple (regardless of your sex) on a domestic basis; or
- have a close personal relationship which is between two adult persons, whether or not related by family, where one or other provides domestic support and personal care, which must not be for fee or reward.
In many areas of law in NSW, your rights as a de facto spouse will be the same as a partner in a regular marriage relationship. For example, you may have rights under the Succession Act to a share of your deceased partner's estate if they die without having made a will, or to make a claim for financial support if provision for you is not included in your deceased partner's will. You may also have rights to receive compensation under workers compensation law if your de facto spouse dies in the course of employment, as well as rights for financial support under the Commonwealth Social Security Act.
If in doubt about your rights you should consult a Solicitor.
Since 1 July 2010, it is possible for a de facto couple to register their relationship under the Relationships Register Act.
Am I entitled to a property settlement?
If you are in a de facto relationship that has broken down after 1 March 2009, you can make a claim for a property adjustment under the Family Law Act. However, you usually need to show that you have lived together for at least two years. If your relationship has lasted less than two years, you may claim if:
- there is a child of the relationship, or
- you are caring for a child of the other party, and the failure to make an order would result in serious injustice to you, or
- you made substantial contributions (financial or personal) for which you will not receive adequate compensation if the court does not make a property order, and the failure to make an order would result in serious injustice to you.
In deciding on the division of property, a court would take into account the financial and non-financial contributions of each partner – for example, the labour involved in renovating property or answering the phones for a business – and the contributions of each partner as a homemaker and parent. The court will also take into account any disparity in your financial positions because of income differences, or obligations for the care of children.
In some circumstances you may be able to apply outside the two-year period if the court gives permission. It is best for the claim to be made within two years of the end of the relationship.
If you are in a de facto relationship which broke down before 1 March 2009, you may still be able to make an application under the Property (Relationships) Act of NSW.
Can I claim maintenance?
Under the Family Law Act, you can seek maintenance if you are unable to support yourself from your own resources and your partner has the capacity to pay maintenance to you.
A court would consider your partner’s ability to pay when determining how much maintenance you may receive. Your entitlement will cease if you marry or enter into another de facto relationship.
Under the Property (Relationships) Act, there are only limited rights to claim spousal maintenance.
Am I entitled to child support?
A carer of a child is entitled to child support under the Child Support (Assessment) Act from the other parent of the child, irrespective of marriage or the registration of a de facto relationship.
Scientific tests can accurately establish whether a man is the father of a child and these tests can be ordered by the court depending on the circumstances.
From 1 July 2009, same-sex parents who separate will be able to seek child support.
Whom will the children live with?
The Family Law Act deals with children’s matters irrespective of whether or not the parents were ever married or lived together. The best interests of the child will be the most important consideration for the court.
As far as practicable, parents are encouraged to share parental responsibilities and to define their own arrangements. If they cannot do so, either party can apply to the court for orders about where the child will live, about the child spending time with each parent and sometimes grandparents and other family members, and about other matters such as schooling and religion.
Normally, a parent or other person concerned for the welfare of the child must participate in family dispute resolution before court proceedings can start. Family Relationship Centres provide family dispute resolution at 17 centres across NSW. Family dispute resolution is not compulsory in cases involving family violence, child abuse or other risk of harm.
Financial agreements in de facto and close personal relationships?
Before or during the relationship you may enter into a legal contract which decides how financial and other affairs, including maintenance and property rights, will be arranged. If you decide to make one of these agreements, you must consult a Solicitor because to be enforceable, the agreements must comply with very precise rules requiring independent legal advice for both parties.
Can I claim social security benefits for my de facto relationship?
De facto partners have the same rights to social security benefits as legally married partners. If you have separated from your partner and have dependent children, you may qualify for a Commonwealth benefit. You may be eligible for other benefits in
the event of your partner’s death.
What rights do I have in circumstances of domestic violence?
The law will protect you if you are subject to violence or harassment even if your partner owns the house you live in. The court may grant a restraining order preventing the violent partner from entering your home or workplace. The court will also protect a child of a de facto relationship in the same way. In the event of an emergency, you should contact the police or the Local Court.
How can a Solicitor help me?
Your Solicitor can:
- outline your particular legal rights
- recommend mediation or counselling in appropriate cases
- help you make a financial agreement
- help you negotiate parenting arrangements, make a parenting plan, or if necessary obtain parenting orders from the court
- help you by preparing and arguing your case if there is a dispute to be heard at court.
- Law Society of NSW
- 170 Phillip Street
- Sydney NSW 2000
- DX 362 Sydney
- T: (02) 9926 0333
- F: (02) 9231 5809
- E: firstname.lastname@example.org