The rights of De Facto Relationships in Australia
Marriage involves a number of legal rights and duties. If a man and woman live together as husband and wife but are not legally married, the legal consequences may be different from those arising from a legal marriage. (www.liv.asn.au)
The length of a de facto relationship can help to decide wills, intestacy,
property settlements and maintenance after the breakdown of a relationship or the death of a partner. The nature of their assets and how those assets were acquired will help to determine property settlements.
The existence of a sexual relationship may help to establish the actual existence of the relationship. The degree of financial independence each partner has may affect, upon failure of the relationship, the contributions made from each partner and any property distribution and maintenance.
The de facto couples genuine domestic arrangements and whether they have had children can determine, upon the breakdown of a de facto relationship, the property, maintenance and other financial support. Generally there is no duty between de facto partners to maintain one another. (http://elo.legalaid.qld.gov.au)
All of the pre-mentioned components can have an impact on the rights and obligations of a de facto relationship.
A de facto relationship can be described as the relationship between a man and a woman who are known to live together as husband and wife but have not entered into any legally binding agreements.
The Family Law Act and the Property Law Act both address issues concerning de facto relationships.
The Family Law Act 1975 (Cth)
The Family Law Act is a federal Act, which applies to all issues relating to children following the breakdown of a relationship whether the parents are married, have lived together in a de facto relationship or never lived together. Matters of child support, orders dealing with residence and contact and specific issues in relation to children are all dealt with by the Family Court. (www.familycourt.gov.au)
The Property Law Act 1974 (QLD)
Laws relating to property issues, where the parties have not been legally married but reside together as husband and wife in Queensland are set out in the Property Law Act.
This is the only legislation, which relates directly to de facto relationships, as Queensland does not have a De facto Relationship Act like some other states in Australia.
Broker, Defacto Legislation (2000,Feb) states that the aim of the Property Law Act is to provide for the resolution of financial matters at the end of a de facto relationship, recognise that de facto spouses should be allowed to plan their financial future, including the making of a cohabitation or separation agreement, and provide for a just property distribution at the end of a de facto relationship.
Cohabitation agreements are written to set out the ways in which a man and woman shall live in a de facto relationship. These agreements can be made at the commencement or end of a relationship.
Separation agreements however, are written to deal with property and possessions distribution, after the relationship has broken down or in the process of ending. Under s265, of the Property Law Act, de facto partners can make a separation agreement either in contemplation of ending their relationship, or after it has ended. That agreement can deal with financial recourses of the couple, the dividing of them individually, including property, superannuation elements, benefits and property.
A cohabitation or separation agreement should be in writing, signed by both parties and witnessed by a Justice of the Peace or solicitor.
These agreements must also contain a statement of all-significant property, financial resources and liabilities of each de facto partner at the time the agreement is signed.
Provided the agreement meets these conditions, it will be known as a recognised agreement and will in most cases be enforced. (Broker, Defacto Legislation. 2000, Feb.)
Breakdown of De Facto Relationships
Issues such as the division of assets after separation and the distribution of assets on death where there is no will cannot be resolved in the same way as if the partners were legally married.(www.liv.asn.)
There fore it is always important for anyone who resides in a de facto relationship to seek legal advice to ensure the security of his or her assets.
Under section 287 of the Property Law Act, the court can only make an order for property settlement where the de facto spouses have lived together in a de facto relationship for at least two years, there is a child of the spouses who is under 18 years or the de facto spouse applying for the order has made substantial contributions to the relationship, so that failure to make an order would result in serious injustice to the de facto spouse. (Broker, Defacto Legislation 2000,Feb.)
Wills, Intestacy & Testators Family Maintenance
Any person may leave property in their will to a de facto partner. If a person dies intestate (without a will), their de facto partner is only entitled to a distribution from the estate if they have lived in a de facto relationship for a continuos period of five years (or periods totalling 5 years within the 6 years prior to the death of their partner).
A de facto partner may be able to make a claim pursuant to the laws relating to Family Provision if they have lived in a de facto relationship for a continuos period of 5 years (within the 6 years prior to the death of their partner).
Although there is no legal definition of a de facto relationship the law does make a distinction between married and de facto partners. A husband or wife whose spouse dies without having made a will automatically by law receives part of the estate of his or her spouse. A de facto husband or wife has no entitlement to his or her deceased partners estate. It is therefore important for people living in de facto relationships to make wills if they wish their estate to pass to their partners on death. (http://elo.legalaid.qld.gov.au)
The Family Law Act applies to all issues relating to children following the breakdown of a relationship whether the parents are married, have lived together in a de facto relationship or never lived together.
There is no legal difference between a de facto relationship and a marriage concerning parents responsibilities for their children.
A child of a de facto relationship is entitled to receive maintenance from his or her parents until the age of 18, or longer if the court is satisfied that maintenance is necessary to enable a child to complete a course of education, or because of the childs mental or physical disability.
Under section 66v of the Family Law Act, a child maintenance order in relation to a child stops being in force if the child is adopted, marries or enters into a de facto relationship. (www.familycourt.gov.au)
The pre-mentioned legal issues could possibly be resolved with an Act for de facto partners. With legislations written in a De Facto Act, not as many cases would be holding up other court suits.
Social Issues & Implications
Child Support and Maintenance
One major issue that continually emerges in todays society is child support or maintenance. With the increase of divorce and de facto relationships the Family Court has made specific parenting orders to prevent the denial of maintenance.
Since 1988 the provisions of the Family Law Act, applies to single mothers, single fathers and their children.
Both parents of an ex-nuptial child have joint responsibility for a child unless there is a Court Order or a Child Agreement registered with the Court to the contrary or if paternity is in dispute.
The issue of paternity often arises when the mother seeks maintenance for the child or where the possible father seeks contact to the child. Paternity can be established in several ways. The first way that the father can be recognized, is if his name is on the birth certificate. The second, if the father has signed a maintenance or child support agreement and acknowledged in the agreement that he is the father and has paid the maintenance or child support under that agreement.
The third is if the parents of the child lived in a de facto relationship at the time the child was conceived. (Although monogamy is not always an issue.)
The fourth way is by the finding of a Court. The Court can order a parentage testing procedure, which can include a blood or genetic test. Failure to take the test incurs no penalty but the Court can draw such inferences as appear just. The report on the test is admissible as evidence of paternity.
Once paternity has been proved the mother can claim child support from the father of her child and the father can approach the Court for contact. (www.liv.asn)