Legal Rights and Benefits for De Facto after Breakup in Australia

What is the Legal Definition of a De Facto Relationship?

In accordance with Australian family law (Section 4AA of The Family Law Act 1975), a de facto relationship refers to two people of the opposite or same sex living together as a domestic couple daily. The stipulations that are involved here are that you cannot be a legally married couple or related to each other by family.


In some cases, a de facto partner might be a person who is still legally married to another person. But the de facto agreement is only valid if he or she is separated.

What is the Duration of a De Facto Relationship?

The length of time that is required to be considered a de facto relationship is at least two years. Therefore, as per the law, a person can only have a de facto partner if they have lived together as a couple without separation for a period of two years. Only in this case, a court can intervene and issue an order regarding settlements of de facto property matters. However, the rule can be evaded if significant contributions were made during this time or if children are involved.

 

As per Section 90SB of the Family Law Act, the court mandates the fulfilment of certain criteria to make an order of maintenance or acknowledge and regulate the property interests of former de facto couples. These are listed below:

  • The Total Length Of The De Facto Relationship Must Be At Least Two Years.
  • The Child Involved Belongs To Both Parties Engaged In De Facto Relationship.
  • The Relationship Has A Legal Registration Or Approval From The State Or Territory.
  • The Parties Involved In The De Facto Relationship Should Apply For:
  1. The Party Involved In The De Facto Relationship Applying For The Declaration Or The Order Should Have Made A Considerable Amount Of Contribution To The Property Or For The Well-Being And Happiness Of The Family; And,
  2. A Non-Observance Or Non-Fulfilment To Make The Declaration Would Result In The Applicant Having To Bear Serious Consequences Or Injustice.

Would it be Necessary to Attend Court if We End Our Relationship?

It is not a necessity to go through trials if you choose to terminate your de facto relationship. There are cases where de facto couples do not have to divide the assets, debts, or other properties when they mutually agree to break up. However, not all cases are similar, and in your case, you may wish to claim a percentage of a property or full ownership of an asset. You can resolve the dispute or reach an agreement without involving the court.

 

In cases where you cannot decide on a fair property settlement, you can apply to a court to get a justified verdict. The jury and judge will assist you in having a proper division of property. Furthermore, the ex-partner can make a claim on superannuation for a specified period of time following the separation. In certain circumstances, spouse maintenance might be applicable.

 

However, you have to go through court proceedings within two years of separating from your former partner. Otherwise, you will have to apply for special court approval.

What is Included in the Term ‘Property of the Relationship’?

The ‘property of the relationship’ simply refers to all the debts and assets that both the parties in the de facto relationship owned or have separate names. The assets include all the objects or properties that were procured before or after the conclusion of the relationship. These items include but are not limited to:

 

  • The Family Home (Residential Property)
  • Superannuation
  • Cars And Boats
  • Money Pending On Personal Loans Or Credit Cards
  • Home Loan Debt
  • Shares And Investments
  • Personal Or Household Items Like Jewellery, Furniture, Art Pieces, Etc.

 

Most people have a hard time coming to terms with ownership of the property or comprehending the notion of ‘Property of the Relationship’. In such cases, it is wise to seek legal advice from authorised law firms like Maatouks Law Group. Furthermore, we also help you protect your assets in a de facto relationship with the help of a property settlement agreement, which is like a pre-nuptial agreement.

What Impact Does the Separation Have on Superannuation?

Superannuation is one of the major areas of focus following a de facto relationship split. As per the superannuation splitting laws, once you separate, there is a probability that you will be entitled to some of your ex-partner’s super and vice versa.

 

Superannuation is considered an asset and viewed under the same lens as all the assets in the property lot (except in Western Australia). There are certain protocols one has to abide by while accessing the assets.

 

One must also refer to the policies outlined under the Family Law Act that include:

  • Superannuation Fund
  • Self-Managed Super Funds
  • An Approved Deposit Funds

 

And the list goes on. The decision to provide benefits to a de facto partner depends on the superannuation fund’s discretion. The chances of getting the discretion exercised work in your favour only if the partner makes a legally binding death nomination and you have a registered partnership.

 

However, if you struggle to understand the various policies, you should not hesitate in contacting Maatouks Law Group. We have been operating since 1993 and have a deep grasp of the various nuances involved in court proceedings and legal aspects pertaining to de facto relationships and property settlements.

At What Point Do Property Rights for De Facto Relationships Come into Effect?

The property rights for de facto relationships come into effect once the relationship has ended. Generally, you have entitlements to your partner’s property and the property of the relationship. These are collectively referred to as de facto break-up entitlements.

 

You have the right to make a property claim under the Australian Family Law Act when:

  • You Get The De Facto Relationship Registered
  • You And Your Former De Facto Partner Lived Under The Same Roof And Together For At Least A Period Of Two Years Before You Went On Your Separate Ways
  • You And Your Former De Facto Partner Have A Child Or Children Together
  • You And Your Former Partner Have Agreed Upon A Property Settlement And Have Requested The Family Court To Issue Consent Orders That You Two Have Mutually Decided

 

The property includes many items such as bank accounts, business assets, real estate, superannuation, personal property, and more.

 

But there are cases when you find property disputes to be cumbersome, and this is where Maatouks Law Group offers optimum assistance. Our local professional Sydney lawyers are friendly, and we help you reach a conclusion without the hassle. We have close ties with some of the top barristers in New South Wales and we stay aware of all the legal updates to give you an edge in your case.

What am I Entitled to if my De Facto Relationship Comes to an End?

If your de facto relationship comes to an end, your entitlement to the relationship properties will depend upon the circumstances. Every case is distinct; hence, your entitlements will differ from others

 

However, Australian family law provides specific fundamental norms and criteria to determine the property claims of de facto couples who have separated. In this regard, the time constraint is the most significant factor. Once you separate, you have only two years to file a property claim in court. During this two-year phase, the parties try to negotiate an agreement. Only if this fails, the case is applied to a court.

 

If you file a claim, the Family Court decides how to split the assets or the property entitlements by sticking to the following parameters:

  • Finding And Estimating The Value Of Each Property Item That Either Party Owned Before Moving In Together And Later Acquiring Possessions.
  • Evaluating Both Parties’ Financial And Non-Monetary Contributions.
  • Taking Into Account The Prospective Requirements Either Party Might Have.
  • Assessing Whether The Proposed Split Is Equitable For The Involved Parties.

 

A point to be noted here is that the time limit does not hold well if there are child/children involved. If you have children, it dissolves the entitlement rights in various ways. You might have to pay child support or if you or your partner quit your job, one of you is entitled to spousal maintenance.

 

If you are looking for legal consultations, Maatouks Law Group comes second to none. We treat each client with utmost respect and integrity and strive to offer full cooperation so that you remain well-informed about the legal proceedings. When you hire us, our experienced professional lawyers delve into the procedure with the help of which we will handle your case and work to achieve the desired outcome.

 

Call us Today on 02 9601 7222!

Key Questions to Ask at Your First Family Lawyer Consultation

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Domestic Violence and Its Profound Effect on Custody Decisions

by Chris Van Langenberg • 27 June 2024
Domestic violence is a critical issue that significantly influences custody decisions under Australian family law. The guiding principle of the Family Law Act 1975 is the best interests of the child, which directs all decisions concerning child custody and visitation. Understanding Domestic Violence in Family Law Domestic violence includes a spectrum of abusive behaviours, such as physical, emotional, psychological, and financial abuse. The Family Law Act defines family violence as any violent, threatening, or controlling behaviour that induces fear in a family member. This comprehensive definition ensures the courts address various forms of abuse. How Domestic Violence Influences Custody Decisions 1. Best Interests of the Child The child's best interests are the paramount consideration in custody decisions. The court assesses several factors, prioritising the child's safety and well-being. Protecting children from physical and psychological harm, including exposure to domestic violence, is crucial. 2. Presumption of Shared Parental Responsibility Generally, Australian family law assumes both parents should share parental responsibility. However, this assumption is void if there are reasonable grounds to believe that a parent (or someone living with a parent) has engaged in family violence or abuse. In such scenarios, the court may grant sole parental responsibility to one parent to safeguard the child. 3. Impact on Contact Arrangements When deciding child contact arrangements, the court considers any existing domestic violence orders (DVOs) and their circumstances. A DVO doesn't automatically bar a parent from seeing their child, but it heavily influences the court's decisions. Depending on the severity and nature of the violence, the court may order supervised contact or, in extreme cases, no contact. 4. Supervised Contact If the court deems unsupervised contact with a parent potentially harmful, it may mandate supervised visits. These visits can occur at a contact centre or under the watch of a trusted third party, ensuring the child's safety during interactions. 5. No Contact Orders In severe instances where any contact with the abusive parent would harm the child's well-being, the court might prohibit contact entirely. This decision prioritises the child's safety and emotional health. Additional Considerations in Custody Cases Involving Domestic Violence The Family Law Act specifies considerations for the court in cases of domestic violence: Nature and Circumstances of the Violence: The court examines the type, frequency, and severity of the violence and its context. Impact on the Child: The physical and psychological effects of the violence on the child are thoroughly evaluated. Parental Capacity: Each parent's ability to care for and protect the child is assessed. Child's Views: Depending on the child's age and maturity, their views may also be considered. Legal Framework and Protections 1. Domestic Violence Orders (DVOs) DVOs are legal measures designed to protect victims of domestic violence by restricting the abuser's behaviour. These orders can prevent the abuser from contacting or approaching the victim and their children, playing a crucial role in custody and visitation decisions by highlighting the need for protective measures. 2. Family Court Interventions The Family Court can implement various actions to ensure children's safety in domestic violence cases. These actions include appointing an Independent Children's Lawyer (ICL) to represent the child's interests, ordering psychological assessments, and obtaining evidence from police and child protection agencies. The court may also require the abusive parent to attend parenting programs or counselling. 3. Mediation and Family Violence Typically, parents must attend mediation before seeking court orders for parenting arrangements. However, in domestic violence cases, this requirement can be waived to avoid endangering the victim. The court acknowledges that mediation may not be suitable when there is a significant power imbalance due to abuse. Conclusion  Domestic violence significantly impacts custody decisions in Australia, with the child's best interests as the primary concern. Courts strive to balance the child's need for meaningful relationships with both parents while ensuring their safety from harm. Legal tools like DVOs and the court's protective measures are vital in safeguarding children in these situations. If you're facing a custody battle involving domestic violence, it's essential to seek legal advice to understand your rights and the protections available for you and your child. At Maatouks Law Group, our experienced Family Lawyers in Sydney can provide the guidance and support you need during this challenging time.

Navigating the Dual Nature of Social Media in Our Connected World

27 June 2024
While the internet has brought the world closer, social media has taken it a step further, making it feel like everyone is just a click away. This connectivity allows us to stay in touch with family and friends, regardless of physical distance. However, this ease of connection comes with a need for caution. As users of social media, we must be mindful of what we share online. This is especially crucial during family law disputes, where indiscriminate posting can have serious consequences. The Impact of Social Media on Family Law: The Real-World Effects of Online Words: It's important to recognise that your online activities can have tangible consequences, affecting perceptions and behaviours. Courts now consider social media posts, comments, videos, and activities as evidence in family law cases. If you're involved in such matters, reducing your social media presence can be beneficial. From Sharing to Sanctions: Social Media Mistakes to Avoid: If you habitually post derogatory content about your ex-partner or share personal details freely, it's time to reconsider. These actions can backfire and negatively impact your case, especially if you're seeking a favourable judgement. Understanding the Legal Risks: Crossing Boundaries: Social Media and Family Law Violations: Section 121 of the Family Law Act prohibits sharing information about your family law issues on social media, with potential legal repercussions. Posts indicating violent behaviour, substance abuse, or other negative traits can harm your case in court. Digital Evidence: How Your Online Activities Can Influence Your Case: Your digital footprint can be scrutinised as evidence, reflecting on your parenting, financial status, and the veracity of your claims. Be cautious with your social media behaviour to avoid undermining your position in custody battles or financial disputes. Critical Missteps to Avoid: Balancing Privacy in Parenting and Property Disputes Online: It's crucial to understand the boundaries of sharing information online, especially regarding your ex-partner, co-parenting situation, or ongoing case details. Clear communication with your ex-partner about what can be shared is essential. Digital Hazards: When Social Media Posts Become Legal Liabilities: Social media should not be a platform for venting frustrations or making threats. Any statements or videos perceived as threatening or self-incriminating can be used against you in court. Choose your online words and actions carefully. The Evidence Factor: Screenshots as Legal Proof: The Digital Evidence You Leave Behind: Screenshots of your online posts can serve as solid evidence in family law cases. They can support testimonies or aid in cross-examinations, influencing the legal outcomes significantly. The Role of Social Media in Financial Disputes: During financial settlements, ensure your social media posts do not contradict your claims of financial hardship. Posts indicating a lavish lifestyle can undermine your case. Strategic Social Media Use: Guidelines for Collecting Evidence on Social Platforms: When gathering evidence online, adhere to ethical standards. Avoid deceptive practices like fake accounts or hacking. Ensure any collected evidence is supported by additional proof. Navigating the Challenges of Digital Evidence: For digital evidence to be admissible, it must be verified and authenticated. Proper collection, storage, and handling are crucial to maintain its validity. Any breaches in this process can raise doubts about the evidence's authenticity. How to Protect Yourself: When to Limit Your Social Media Activity: During legal proceedings, it's wise to limit your social media activity. If you must post, do so thoughtfully, as your posts can be used against you. Enhancing Your Social Media Privacy: Familiarise yourself with social media platforms' privacy settings, use strong passwords, enable two-factor authentication, and be selective about who can view your posts. Precautions and Best Practices: Guidelines for Social Media Conduct During Legal Disputes: Exercise restraint in your social media conduct during legal disputes. Avoid posting impulsively and consider how your posts might be perceived in relation to your case. The Importance of Legal Advice in Managing Social Media Risks: A legal advisor can help you understand the implications of your social media activity, guide you on what to avoid, and advise you on strategically using social media to support your case. They can also educate you on your rights and responsibilities in this context.

Avoiding Ex’s Debt After Divorce

27 June 2024
Navigating a divorce in Australia is challenging, but with proper support, you can proceed smoothly. Separating your finances from your ex-partner is essential and must be done decisively. Open discussions and clear arrangements are crucial to avoid financial confusion later. The Challenge of Debt in Divorce Divorce financial matters involve dividing both assets and debts. Ensuring fairness in both is difficult, especially with debts. Beyond Asset Division: The Hidden Battle of Debt in Divorce Liabilities like mortgages, credit card loans, personal loans, and student debts must be managed when a couple separates. These debts need arrangements for repayment or continued payments. Dividing assets is hard, but splitting debts is more complex, often leading to unfair distribution. Why Debt Division is Harder Than Asset Splitting Partners are eager to claim assets but reluctant to share debts. This common attitude complicates fair debt division. The long-term financial impact and the challenge of equitable debt distribution make it tougher than splitting assets, which is more straightforward. Seeking Fairness in Division Fairness is essential in dividing both assets and debts. Assessing both parties' debt situations helps determine responsibility and whether debts were for mutual benefit. Future financial capacities must also be considered. Equity Vs Practicality: Striving for Fairness in Debt Division Fair debt division requires balancing equity and practicality. While equity involves contributions and financial circumstances, practicality focuses on feasible solutions. Flexibility, cooperation, and open communication are key. A thorough financial assessment, including income, assets, and liabilities, is necessary. The Legal Framework for Fair Debt Allocation: Insight from Family Law The Family Law Act 1975 governs debt allocation for separating couples. Courts consider factors like when the debt was incurred, each party's contributions, and the impact on children in asset and debt division. Practical Steps for Fair Division Regardless of emotions, financial matters must be approached objectively for an equitable debt-sharing arrangement. A Slow and Steady Approach to Debt Division Debt division requires time and careful steps, including gathering financial information, assessing joint debts, prioritising high-interest debts, and exploring options for repayment. Honesty and cooperation are vital. Unveiling Hidden Debts: The Importance of Full Disclosure in Divorce Proceedings Both parties must legally disclose debts and assets during separation. Hiding debts can hinder fair division and lead to legal consequences and trust issues. The Role of Contributions and Circumstances in Debt Division Financial contributions include income, assets, and debt payments, while non-financial support also matters. Financial circumstances, such as income, assets, liabilities, and earning potential, are crucial in debt division. Handling Shared Debts Planning and open communication are essential in handling shared debts. Tackling Shared Debts: Mortgages, Loans, and Unreasonable Debts After disclosure and assessment, careful planning of shared debts is needed. Financial circumstances are considered, and repayment options are explored to create workable agreements. Who Pays What? Understanding the Allocation of Shared Debts Debt allocation depends on several factors, including whether debts were for reasonable household expenses or unreasonable spending. Reasonable debts may be shared, while unreasonable debts typically fall on the borrower. Preventive Measures During a divorce, it's important to stay financially aware to avoid taking on an ex’s debt or losing a claim to an asset. Staying Ahead: Preventive Measures to Avoid Taking on an Ex’s Debt Prenuptial agreements help, but staying aware of earnings, expenditures, borrowings, and outstanding debts during the relationship is crucial. This clarity aids in determining who takes on what debt during separation. Financial Literacy: A Shield Against Post-Divorce Debt Burdens Financial literacy involves understanding financial obligations, budgeting, managing debts, and saving. This knowledge helps avoid post-divorce debt burdens and ensures better financial circumstances. The Power of Financial Awareness in Preventing Debt Disputes Financially aware partners encourage open communication about assets and debts and take proactive measures like prenups. This awareness helps prevent major debt disputes. Taking Control of Your Financial Future Focus on long-term financial consequences and maintain control to ensure a secure future. Reclaiming Financial Independence After a Divorce Assess your financial situation, including income, expenditures, assets, and liabilities, to prevent unfair debt division. Highlight high-interest and long-term debts, and consider your repayment capacity. Seek professional financial guidance for debt-sharing agreements. Legal Recourse for Unfair Debt Division: Know Your Rights If debt allocation feels unfair, seek legal help. A family lawyer can guide you on your rights and assist in reopening your case if necessary, leading to reassessment of debts and assets. Developing a Financial Game Plan Post-Divorce After debt division, create a financial plan for a stable future. Seek professional advice if needed, and design plans that accommodate short- and long-term goals and savings. This helps maintain financial control and avoid future entanglements.

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