De facto and personal relationships?
Will the law recognise my de facto, or close personal relationship?
The law will recognise your relationship if you and your partner:
- live together in a de facto relationship (either opposite-sex or same-sex relationship) as partners on a domestic basis for a qualifying period, or
- have a close personal relationship which is between two adult persons, whether or not related by family, where one or other provides domestic support and personal care, which must not be for fee or reward.
In some areas of law in NSW your rights as a de facto spouse will be the same as a partner in a regular marriage relationship. For example, you may have rights under the Wills, Probate and Administration Act to a share of the intestate estate of your deceased partner, to make a claim under the Family Provision Act or to receive compensation under workers compensation law if your de facto spouse dies in the course of employment. You may also have rights under the Commonwealth Social Security Act.
If in doubt about your rights you should consult a solicitor.
Am I entitled to a property settlement?
The Property (Relationships) Act (formerly called the De Facto Relationships Act) gives important rights to de facto partners and people in close personal relationships. The law gives such partners rights which are similar to those of a married partner claiming property settlement, regardless of whose name the property is in. However, you usually need to show that you have lived together for at least two years. If your relationship has lasted less than two years, you may claim if:
There is a child of the relationship.
- You are caring for a child of the other party, and the failure to make an order would result in serious injustice to you.
- You made substantial contributions (financial or personal) for which you will not receive adequate compensation if the court does not make a property order, and the failure to make an order would result in serious injustice to you.
In deciding on the division of property, a court would take into account the financial and non-financial contributions of each partner – for example the labour involved in renovating property or answering the phones for a business – and the contributions of each partner as a homemaker and parent.
The property relevant to a claim may include real estate and personal property, such as funds held in a company, or damages payable to your partner as a result of court proceedings, but generally not superannuation owned by the other party. However, superannuation and property owned by a discretionary trust will often be a financial resource and relevant to a property settlement.
Applications for property division must be made to the Supreme Court, District Court or the Local Court within two years of the end of a relationship. The maximum you can claim in the Local Court is $60,000, unless the parties agree to the Local Court hearing a claim for a higher amount. The maximum you may be able to claim in the District Court is $750,000. In some circumstances you may be able to apply outside the two-year period if the court gives permission. It is best for the claim to be made within two years of the end of the relationship.
Can I claim maintenance?
Under the Property (Relationships) Act there are limited rights to claim spousal maintenance.
You must show either that you cannot work because of the care of a child under 12 of the relationship or of the other party, or the care of a physically or mentally handicapped child under 16, or that you have lost your earning capacity as a result of the relationship and that you are prepared to undergo training or further education to improve your earning capacity.
A court would consider your partner’s ability to pay when determining how much maintenance you may receive. Your entitlement will cease if you marry or enter into another de facto relationship.
Can I claim child support?
A carer of a child is entitled to child support under the Child Support (Assessment) Act from the other parent of the child, irrespective of marriage. Scientific tests can accurately establish whether a man is the father of a child and these tests can be ordered by the court depending on the circumstances.
Who will the children live with?
The Family Law Act deals with children’s matters irrespective of whether or not the parents were ever married. The best interests of the child will be the most important consideration for the court.
As far as practicable, parents are encouraged to share parental responsibilities and to define their own individual arrangements. If they cannot do so, either party can apply to the court for orders about where the child will live, about the child spending time with each parent and sometimes grandparents and other family members, and about other matters such as schooling and religion.
Domestic relationship termination agreements
The law recognises that many couples choose to enter into financial agreements before they marry or before or after they enter into a de facto or personal relationship. These agreements are recoginised under the Property (Relationships) Act.
Before or during the relationship you may enter into a contract which decides how financial and other affairs, including maintenance and property rights, will be arranged. If you decide to make one of these agreements, you must consult a Solicitor because to be enforceable, the agreements must comply with very precise rules requiring independent legal advice for both parties.
Can I claim social security benefits for my de facto relationship?
De facto partners have the same rights to social security benefits as legally married partners. If you have separated from your partner and have dependent children, you may qualify for a Commonwealth benefit. You may be eligible for other benefits in the event of your partner’s death.
What rights do I have in circumstances of domestic violence?
The law will protect you if you are subject to violence or harassment even if your partner owns the house you live in. The court may grant a restraining order preventing the violent partner from entering your home or workplace. The court will also protect a child of a de facto relationship in the same way. In the event of an emergency you should can the police or the Local Court.
How can a solicitor help me?
Your solicitor can:
- Outline your particular legal rights.
- Recommend mediation or counselling in appropriate cases.
- Help you make a financial agreement.
- Help you negotiate parenting arrangements, make a parenting plan, or if necessary obtain parenting orders from the court.
Help you by preparing and arguing your case if there is a dispute to be heard at court.
What about the children?
Family dispute resolution
When you are separating, it is important to obtain independent legal advice about your rights.
Your solicitor will tell you about the family dispute resolution methods available to you before going to Court. They include negotiation, counselling, mediation, arbitration, collaborative law and child-inclusive processes. If there is a high level of emotional conflict or hostility, a power imbalance or domestic violence, some of these methods may be inappropriate.
Family Relationship Centres have also opened in many places where people can have three hours of free advice and assistance about their separation issues. You may be referred for reconciliation or separation counselling or for mediation. In most cases, it will be necessary for both parties to attend at counselling or mediation with a registered family dispute resolution provider before they can start proceedings for parenting orders.
Often it is useful to reach a short-term or interim agreement on matters such as occupation of the home, where the children will live, contact and child support.
Separation or reconciliation counselling can help at this time. Once matters settle down and both parties accept that the separation will be permanent, it may be much easier to resolve the outstanding issues.
What are my responsibilities as a separated or divorced parent?
All parents, whether married or not, have a responsibility to ensure that their children receive adequate and proper parenting. All parents have the responsibility to promote the best interests of their children. Under the Family Law Act, parental responsibility for children does not end with separation or divorce, but continues until each child reaches at least the age of 18.
Except when a child is at risk of abuse or neglect or it is contrary to a child’s best interests, children have the right to live or spend time with both their parents and other people significant to their care, welfare and development, such as grandparents.
Parents should try to agree about matters concerning their children. They share the responsibilities for making decisions about major long-term issues. When an agreement is reached it can be made legally binding by ‘consent orders’. Some parents choose to use parenting plans which are less formal.
Can I get custody or have access?
The old terms ‘guardianship’, ‘custody’, ‘access’ and ‘contact’ have gone. Now you may seek parenting or shared parenting orders, including orders dealing with:
- The person or persons with whom a child is to live.
- The time a child is to spend with the other parent.
- The allocation of parental responsibility.
- Consultation between parties where there is shared parental responsibility.
- How to vary orders as the needs of the children or parents change.
What if we can’t reach an agreement?
Parents must exercise their responsibilities in the best interests of the child, but if they cannot do so or cannot come to an agreement, a Court will make parenting orders on application.
Best interests of the child
In making an order, the Court presumes that it is in the best interests of the child to have equal shared parental responsibility, but not necessarily equal parenting time. If there has been abuse or violence seen by or involving the child, or there are other reasons that it is not in the best interests of the child, then the Court should not order equal shared parental responsibility.
If equal time is not appropriate, the Court must consider if substantial and significant time would be in the child’s best interests. The Court has regard to a list of primary and additional considerations to determine what is in the child’s best interests.
The primary considerations are the right of children to know their parents and to be protected from harm. What is in the best interests of the child is the paramount consideration for the Court.
The additional considerations include matters, such as:
- The views of the child and the weight which the Court should give to their views, depending on age, maturity etc.
- The prior involvement which parents have had in the child’s life.
- The willingness and ability of each parent to encourage and facilitate the other parent’s involvement with the child.
- How any change might affect the child.
- Practical difficulties and expense in seeing a child.
- The capacity of each party to provide for the needs, including the emotional and intellectual needs of the child.
- The maturity, sex, life-style and cultural background of the child and parents, including the right to enjoy their culture.
- The attitude to the child and responsibilities of parenthood shown by the parents.
- Any family violence involving the child or a member of the family.
How to change parenting arrangements
Once parenting orders are made, the Court will only change those orders if it is satisfied that there has been a significant change in circumstances to justify the orders being varied. Normally it is easier to change the provisions of a parenting plan. However, parenting plans do not have the same enforceability if they are breached.
The Court often requires parents to meet with a family consultant to try to reach agreement on orders to be made. Court hearings in children’s matters are less adversarial than they previously were. Many cases are resolved once a family report is prepared by a family consultant or counsellor. Often the Court will appoint an independent children’s lawyer to represent the child.
Apprehended Domestic Violence Orders
If violence, threats or verbal abuse occur in your relationship, it may be necessary to obtain an Apprehended Domestic Violence Order from a Local Court. In serious or urgent cases, a police officer may seek the order on your behalf. If you are afraid of your partner or a family member, tell your Solicitor who will advise you how to obtain an order to protect yourself and your family.
How will a solicitor help me?
Your solicitor can:
- Advise you of your legal rights.
- Advise you if you may be entitled to Legal Aid.
- Tell you which method of primary dispute resolution may be best for your case.
- Assist you to negotiate parenting orders or refer you to a counsellor or mediator.
- Check any agreement you make with your spouse on shared parental responsibility for children.
- If you must apply to the Court, prepare documents in support of your application to establish that it is in the best interests of the children for the Court to make the orders you seek.
- Interview your witnesses and prepare affidavits of their evidence.
- Present your case or engage a barrister to represent you in Court if it must go to a hearing.
- Help you to enforce or consider a variation of your parenting orders.