De Facto Relationship Property Rights – Entitlements & Obligations

First published March 21st, 2022

The end of any relationship is often an emotional experience, and many people tend to overlook or understand their own de facto relationship property rights.

This article will guide you on de facto relationship property rights and how they may affect your life.

What Are Your Property Rights if You’re in a De Facto Relationship?

The legal rights of a de facto couple in Australia are limited. For those protections and benefits to apply, the two people must meet specific criteria, including in most cases living together as an authentic family unit on at least one residential property during any period when they were partnered up until separation or death occurs.

Your legal rights as a de facto partner only become an issue when the relationship breaks down. At that point, you may need to work out how to divide property and make childcare arrangements.

What if I Didn’t Sign Anything When I Moved in With My De Facto Partner?

There is no requirement in Australian law to sign any legal documents that state you are in a de facto relationship for property or assets ownership. If you do have any shared property, you will need to provide documentation of purchase or any other documentation that provides a history of paying mortgages like bank statements, utilities, personal loans or any other investments you have made while in the relationship.

A lawyer will need to know the complete history of your relationship, starting with when you first met and lived together. You should include dates about any property bought or sold. It’s also helpful if details about how much money you both earn while in a de facto relationship.

What Is the Difference Between de Facto and Married Property Rights?

A generation ago, marriage was seen only between a married man and woman, but today the laws governing marriage and de facto relationships have changed considerably.

The changing landscape of modern relationships has led to a rewriting or rethinking of family life laws. De facto couples (same-sex and heterosexual) can now enjoy almost the same rights as married couples regarding de facto property settlement and division under Australian law.

A person in a de facto relationship must meet specific criteria to prove they were in a legal de facto relationship in order to make a claim for property settlement or spousal support. A married couple only needs to prove they were married, which is easily evidenced via a formal marriage certificate.

How Are de Facto Relationship Property Rights Determined?

To be considered to be in a de facto relationship under the Family Law Act, you and your former partner must have lived together on a “genuine domestic basis.”

So what does a genuine domestic basis mean?

The definition of “genuine domestic basis” is very broad. The court will consider many factors when deciding whether a couple live together on a genuine domestic basis. This is because relationships take many different forms, and arrangements are not always straightforward.

To find out what constitutes a de facto relationship in the eyes of the law, check our article ‘Am I in a De Facto Relationship?’

What Is the Difference Between Property Rights and Assets?

Your property is the assets or the things you own, like a home, cash, or cars. Liabilities indicate loans that need to be paid back with interest – these may include credit card bills, car loans or mortgage repayments. There could be multiple people who have title ownership over one item, called “joint tenancy.” A family trust would allow individuals in different branches to claim an investment or property ownership.

The legal system is a complicated and technical one. If you’re going through a separation or any other sort of family law matter, it’s best to get professional help from an experienced family lawyer.

A family lawyer will help guide you through the legal system and ensure that everything is completed correctly. Family Lawyers specialise in separation for de facto relationships, custody matters or any other type of relationship-based issue, which can be highly technical and confusing.

How Do You Protect Your Property if You Are in a De Facto Relationship?

One of the best ways to protect assets in de facto relationships is by entering into a binding financial agreement. This can be entered into at any time during or even after you’ve separated from that person. A binding financial agreement sets out how assets and liabilities and/or spousal maintenance will be distributed in the instance that the relationship breaks down.

What Is the Process for Separating Property After a de Facto Relationship Ends?

Both parties should start by seeking independent legal advice from a property settlement lawyer to negotiate the terms of the agreement. If both parties can agree, property matters can be formalised via a Binding Financial Agreement or via Consent Orders, both of which are legally binding.

Are There Any Exceptions to De Facto Relationship Property Rights?

The right to claim property settlement arises as soon as you are married. There is usually no right for de facto property settlement unless the relationship has lasted for at least two years before a court will hear the case and decide who gets what from the asset pool.

The two-year rule is not always the case, and there are some exemptions to this rule. An example is if you have registered your relationship under State or Territory legislation or there is a child of the de facto relationship. Another example is if one party has made significant financial or non-financial contributions and a failure to recognise the substantial contributions would cause the applicant to suffer serious injustice.

Contact Us For More Information on De Facto Relationship Property Rights

If you would like more information about de facto relationship property rights, or if you are in a de facto relationship and need advice on your property rights, please contact our team of friendly de facto lawyers. We would be happy to answer any of your questions and provide you with the advice you need to make informed decisions about your future.

Frequently Asked Questions

What Happens if One Person Wants to Leave the Relationship but Keep the Property?

If you were in a relationship with your ex-partner, and now you have left or broken up – it may be time to make claims on their property. This includes property acquired before the breakup and purchased during your partnership, like houses, vehicles and other assets.

Can You Claim Spousal Maintenance if You Are Not Married?

Spousal maintenance may be payable to a person living in Australia, regardless of their relationship status. The grounds for claiming maintenance are essentially the same whether you’re married or in a de facto relationship.

What if I Am in a De Facto Relationship and the Partner Dies Without a Will?

If you’ve been living in a de facto relationship and your partner passes away, there are certain rights under intestacy law that will allow for the receipt of part ownership or assets.

Can My De Facto Partner Claim My Inheritance?

The Law defines a de facto spouse as someone who was the sole partner of another person and not in any other relationship that could be considered “de facto.” The will of someone who dies without a written provision for their de facto and children can still be challenged by those people if they believe inadequate care was made during life. This is similar to how it would work in situations where you’re dealing with married couples.