Do de facto and married couples have the same rights when their relationships end? Do de facto and married couples have the same rights when their relationships end?

Do de facto and married couples have the same rights when their relationships end?

19 August 2019 | Property Settlements

When it comes to settling financial matters, the legal rights of de facto and married couples are very similar.

Two changes to the Family Law Act 1975 (Cth) in late 2018 rendered those rights even more similar:

  • Consent to proceed “out of time – De facto couples may now consent to instituting proceedings in respect of property settlement and spousal maintenance where the two year limitation period has expired (that is, more than two years after the end of a de facto relationship.  Before the 2018 amendments, this was not possible); and
  • Seek Orders after a financial agreement is set aside - De facto couples may now commence proceedings in respect of property settlement or spousal maintenance twelve months after a financial agreement is set aside or found to be invalid. This could be many years after separation. The court may, however, dismiss such an application if it is satisfied that there would be a miscarriage of justice by allowing the application to proceed (for example, where the consent of a member of the de facto couple was obtained by fraud or duress).

What differences remain?

Whilst the gap is narrow, there are still a few differences in the legal position of de facto couples and married couples to keep in mind:

  • For a de facto couple to seek an order for property settlement or spousal maintenance, the Court must be satisfied of at least one of the following:
    • The period of the de facto relationship was at least two years; or
    • There is a child of a de facto relationship of at least two years in length;
    • That failure to make an order would result in serious injustice due to the significant contributions made by one party in a de facto relationship of less than two years; or
    • The relationship is or was registered under a prescribed law of a State or Territory.

By comparison, for a married couple, it is enough merely to have been married to attract the jurisdiction of the Court for property and spousal maintenance.

  • A de facto relationship must have ended for the Court to make an order for property settlement or spousal maintenance. However, for married couples, that the marriage has ended it is not a precondition to seeking property or spousal maintenance orders - couples who are still married may apply to the Court for property or maintenance orders; and
  • De facto couples must overcome more complex jurisdictional requirements before a Court has the power to make an Order. The requirements can be met if the Court is satisfied that one or both of the de facto couple had a geographical connection to participating States (New South Wales, Victoria, Queensland and Tasmania) or one of the two Territories - for example, that they resided in a participating State or Territory when the application for an Order was made or when the relationship broke down.

The highly skilled team at Barry.Nilsson. can work with you to help you resolve arrangements arising out of the breakdown of your relationship.

Caitlin Elliott

Caitlin Elliott

Associate

Scott Wedgwood

Scott Wedgwood

Principal