There’s a lot of discussion in relation to marriage in the media at the moment, but there doesn’t seem to be a lot of information about the other popular relationship choice for couples – the de facto relationship. I thought it might be helpful to discuss what a de facto relationship is and how you enter into one in Western Australia.
A de facto relationship is where two people who aren’t married are committed together in a marriage-like relationship. This is any two people, regardless of gender, so includes same-sex couples.
Where there is dispute as to whether a de facto relationship exists, there are a number of factors that are considered to determine if a couple have been living in a marriage-like relationship. The factors considered include the length of the relationship, whether you lived together, your financial interdependence and financial arrangements between you both, whether there are children, the degree of mutual commitment to a shared life and how your relationship is perceived by others.
Every de facto case will turn on its own facts and merits and it can be complicated determining if a de facto relationship actually exists. It is possible to be classified as being in a de facto relationship when you’re still legally married to someone else, or even where you are a committed couple who aren’t living together.
Since 2002, Western Australian de facto couples have many similar rights to married couples, such as:
- Being each other’s next of kin;
- Being able to bring property and maintenance applications in the Family Court;
- Being able to claim against a deceased partner’s estate; and
- Being able to be nominated as a superannuation dependent, so that the surviving partner will receive the other partner’s superannuation benefits upon death.
To be entitled to access the Family Court as a de facto couple, you must have:
- Been in a de facto relationship for at least 2 years; or
- There needs to be a child of the de facto relationship who is under 18 years old and failure to make an order would result in serious injustice to the partner caring/responsible for the child; or
- The applying de facto partner must have made substantial contributions to property or welfare of family and failure to make an order would result in a serious injustice to that partner.
There are still some important differences between married and de facto couples.
If a married couple separate, they have 12 months from the date of their divorce to attend to property settlement. In Western Australia, de facto couples must resolve their family law property settlement or commence Court proceedings within 2 years of the date of separation. If that limitation date is not complied with, then it will be necessary to make application to the Family Court to proceed out of time and there is no guarantee such leave with be granted.
When married couples separate, their respective superannuation policies are considered an asset of the relationship and married couples can split their superannuation entitlements.
In Western Australia, superannuation is considered a financial resource for de facto couples. Whilst the superannuation policies can be considered, they cannot be split between de facto parties. This can create significant difficulties for de facto couples in resolving a property settlement.
If a de facto couple have Wills in place and later marry, if their Wills were not in contemplation of marriage to each other, then from 2008 onwards the marriage will invalidate the de facto couple’s Wills. This is important for de facto couples to keep in mind.
Whilst there are differences between married and de facto couples in WA, it is important that de facto couples know they do still have rights and that they are recognised by the law, as long as all of the appropriate requirements have first been met.