Under Australian law, de facto couples have effectively the same legal rights and remedies as married people if they separate. So, if you are in a relationship but not married, your status as a de facto or otherwise is very important, especially when it comes to dividing your assets and working out who gets what.
If a court determines that you have been in a de facto relationship, it can then decide how your combined assets will be divided, including whether one of you has to pay spouse maintenance to the other.
What if my ex-partner makes a de facto property settlement claim against me?
Generally, a couple must have been together in a de facto relationship for two years before they can legally make a claim for a property settlement against their former partner.
If your ex makes a property settlement claim against you, then regardless of whether or not you believe you were in a de facto relationship, you should ensure that you obtain advice from a qualified Australian family lawyer.
Will I have to pay maintenance to my former spouse?
In Australia, a person has a responsibility to financially assist their former spouse or de facto partner if that person cannot support themselves. This kind of financial support is known as ‘spouse’ or ‘de facto spouse’ maintenance and it can be costly. Spouse maintenance can be in addition to any orders for a property settlement.
In considering requests for maintenance, the court has to consider whether the person seeking a maintenance order is genuinely unable to adequately financially support themselves. That person must be able to prove that they are seeking maintenance for “an adequate reason”, for example, having to care for a child or being unable to work due to age or health.
The court must also be convinced that the person being asked to pay maintenance has the capacity to do so, after taking into account that person’s own reasonable living expenses and (in some circumstances) those of others, such as their new partner or children.
How can I avoid a property settlement and maintenance claim from my de facto partner?
De facto couples who wish to remove the threat of litigation can create a financial agreement. This is a legally binding document which records their intentions as to how some or all of their property and financial assets will be divided if they separate.
The financial agreements we have in Australia are similar to American pre-nuptial agreements. In addition to covering property and finances, a couple can also use them to exempt each other from spouse and de facto maintenance, or to specify the maintenance terms in the event that they separate.
It's important to be aware that pre-existing assets, that is assets acquired by either party before the de facto relationship commenced, will form part of the asset pool available for division in the event that the couple later goes their separate ways. Your respective contributions are still relevant, however you should not assume that those assets will be quarantined from a claim, except where the couple have entered into a financial agreement which provides for that outcome.
A financial agreement offers many advantages, however careful consideration needs to be given as to the appropriateness of an agreement for your particular situation. If you are thinking about creating or signing a financial agreement, you should seek appropriate legal advice.
Asha Fielding, Lawyer
Daniel Kaufman, Senior Associate
Jane Koelmeyer, Partner
Asha Fielding | Lawyer
Family & Relationship Law
+61 3 9269 9677
Jodylee Bartal | Special Counsel
Family & Relationship Law
+61 3 9269 9323
All information in this article is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material published can be accepted.