The law defines a De Facto couple as two people who are not married to each other or related by family, but who are living together in a genuine domestic relationship.
If a De facto relationship breaks down in separation, the emotional pain and stress are just the same as at the end of a marriage. The legal questions will also be very similar, especially if there is conflict between partners over the division of property and assets or custody of children. The law favours mediation and negotiation over court arguments, but at Diamond Conway we can assist you no matter how far your separation case needs to go.
Compassionate and skilled legal assistance – which our specialist Family Law team at Diamond Conway has offered for many years – can help you reach the agreement you need, while keeping the separation process as smooth and angst-free as possible.
Recent changes to the law have given same-sex couples the same rights as De Facto couples. Click here to read more.
We have long experience and a respected record of achieving beneficial outcomes for clients who have separated from their partners. Our team includes an accredited specialist in Family Law, Tom Doumanis. For legal advice and support with any aspect of a De Facto separation, call us at Diamond Conway on 02 9222 8000.
Two people in a genuine domestic relationship
In Australian law, De Facto relationships are defined in the Family Law Act 1975 as a couple (of any combination of the sexes) not married or related by family, living together ‘on a genuine domestic basis’. If a De Facto relationship breaks down, this is an important question to consider when arranging the division of property and assets or custody of children. The ‘genuine domestic basis’ of a relationship may mean a combination of several things:
Because a De Facto relationship is not a formal marriage, some of these criteria can sometimes be harder to interpret or define in court during a separation hearing. If you are experiencing difficulty with this in your separation procedure, specialised legal advice may be very important. At Diamond Conway, we have years of experience in assisting clients in many different family situations, and can offer you the advice you need to define your relationship in legal terms.
De Facto partners have several rights that are also shared by married couples, particularly if one partner dies. For the surviving partner, these rights include:
De Facto relationships can be legally registered in the state or territory where the couple normally live. This is an advisable action to take, because if the relationship breaks down in the future and the partners seek to separate, a registration will assist the court in recognising the relationship and arranging a fair division of assets or property, or custody of children.
Click here to visit the ‘Relationships register’ webpage of Births, Marriages and Deaths New South Wales.
Just as with a divorce, a De Facto separation will involve more than a legal closure to the relationship. It will be necessary to divide the couple’s property and assets and arrange the custody of any children they have. This is often an emotional and distressing matter, in which specialised legal advice may be necessary.
The law requires every separation to begin with mediation and negotiation, with both partners seeking agreement outside court. At Diamond Conway we are highly experienced in these procedures and we will pursue the most beneficial outcome for you that we can. However, separating couples cannot always reach a fair agreement, so that their case has to proceed to the Family Court. If this happens we are also ready to assist you.
Usually, a time limit of two years applies for beginning a formal De Facto separation procedure. That means you can file for legal separation even if you have already been living apart from your De Facto partner for some time (as long as that time is less than two years).
If separating De Facto partners have children, then the question of divided custody will need to be negotiated in court, even if other aspects of the separation are settled in mediation. Click here to read our page on child custody and child support.
The obligations for De Facto partners to support one another financially, either in the relationship or after a separation, are different from those that bind a married couple (including after a divorce). The law may not oblige a person separating from their De Facto partner to support that former partner financially. This may only be necessary if the separation has caused the former partner to lose their earning power, or if the former partner is unable to work because they are the primary carer for their child.
The law requires any De Facto couple undergoing a separation to engage in mediation and negotiation before taking their case to court. At Diamond Conway, we understand that not every couple can reach agreement through mediation, so we are prepared to offer compassionate advice and support no matter how far your separation case needs to go.
In mediation, a separating De Facto couple seeks a formal agreement on the distribution of their property and assets. Each partner should seek independent legal advice and seek an agreement that both feel is “just and equitable”. If a satisfactory agreement is reached, an application is made to the Family Court or the Federal Circuit Court, which will grant a Consent Order, formalising the separation. There will be no need for a court appearance, unless the De Facto couple have children.
If mediation cannot produce a “just and equitable” result for both parties, then the separation case will have to go to the Family Court or the Federal Circuit Court to obtain Property Orders, as well as Parenting Orders if the De Facto couple have children. Expert legal assistance will be necessary to achieve a fair result.
All separations will be emotional and stressful for both partners, but at Diamond Conway we have the skill and sensitivity needed to negotiate beneficial outcomes for you. Whether in mediation or in court conflict, we are ready to assist you. Our legal team includes an accredited specialist in Family Law, partner Tom Doumanis. For compassionate and knowledgeable advice on any aspect of a De Facto separation, call us today on 02 9222 8000.