The Myths and Misconceptions About De Facto Relationships

At Gowland Legal, we have seen numerous social media posts from people who are separating from their de facto partners. And, based on the comments, there seems to be rather a lot of confusion out there about de facto relationships and family law.
The kinds of comments we have seen include incorrect statements such as ‘unfortunately, you aren’t able to claim anything because you weren’t married’ and even illogical mathematical equations, e.g., ‘6 months means you can have 1/8 of the property plus whatever is in your name’. Such comments make us realise that there must be many people out there who are unsure about their legal position regarding their de facto relationship.
According to section 4AA of the Family Law Act 1975, a person is in a de facto relationship with another person if:

They are not legally married to each other; and

They are not related; and

They have a relationship as a couple living together on a genuine domestic basis.

Now, here are a few de facto myths we want to bust:

‘No marriage = no entitlement.’
Not true. De facto relationships generally have the same standing as married couples in relation to children and property.

‘You haven’t been together for 2 years so they won’t get anything.’
Not necessarily. In relation to property settlements, you are only required to satisfy one of four different gateway criteria:
1. The length of the de facto relationship was at least 2 years;
2. There is a child in the de facto relationship;
3. The de facto relationship was registered under law; or
4. There were significant contributions made by one party and if unaddressed by the Court would cause serious injustice to that party.

‘They will get half of your property.’
Not true. There is no presumption for a 50/50 split in Australia.

‘You’re gay so the law doesn’t recognise your relationship.’
Not true. De facto relationships are not defined by gender. Same-sex de facto couples are treated the same as opposite-sex de facto couples under family law in regards to property and child disputes.

‘All the property is in my name, so they have no claim.’
Not true. The fact that, for example, a house is only in one party’s name does not mean the other party cannot make a claim. The Court also has extensive powers to combat against those who try to hide and move assets from the relationship.

If you are confused about your relationship’s status under the law, it is best to seek legal advice. There are many factors that might point to you being in a de facto relationship.
In the matter of Allenby v Kimble, the parties lived together on and off throughout their relationship, one party was seeing someone else at the time and both parties signed documents to say they weren’t in a de facto relationship – however, the Court still ruled that they were in a de facto relationship!
This post is intended as a general guide to the law. You should seek legal advice for your specific facts.
At Gowland Legal we have a wealth of experience in Family Law matters. Give us a call on 1300 693 000 or send an email to contact@gowlandlegal.com.au if you require advice.

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