When you get married you are automatically entitled to a swathe of protections, rights and responsibilities which provide guidance in the event of a relationship breakdown, a partner losing capacity, or the death of a partner. However, you do not need a marriage certificate in order to enjoy many of the legal benefits of a marriage. If you are in a de facto relationship then you and your partner are entitled to many of the same rights and protections as a married couple.
To determine whether your relationship can be considered de facto, it must meet the following criteria:
- Both partners must be 18 years or older
- Neither partner can be in a marriage or registered relationship with a third party
- Partners cannot be related by family
- The relationship must include a financial or personal commitment or support of a domestic nature made by at least one partner to the benefit of the other
On a federal level, de facto relationships are only recognised when the partners are living together, but you are able to register a relationship within the state of Victoria regardless of whether you and your partner share an address. Although you can formally register a relationship in Australia without getting married, your relationship does not need to be registered in order to be considered de facto.
If your relationship can be considered de facto, you may have some queries about the rights you have both during the relationship and in the event of relationship breakdown. Should you experience a significant change in the nature of your de facto relationship, it is best practice to consult a lawyer as they can represent your interests and ensure you receive the protections you are entitled to.
Am I liable for spousal maintenance?
If there is a significant disparity between your income and the income of your former partner on the date of separation, you may be liable to pay spousal maintenance after you separate, though this is known as de facto partner maintenance when there is no marriage. De facto partner maintenance functions to ensure both persons in a partnership are able to meet their living expenses after the relationship breaks down, so if your partner had been relying on your income for their living expenses then they may be entitled to continue using a portion of your income post-separation. Maintenance will need to be paid if the court determines that you have the capacity to pay and your former partner has a need to be paid.
The extent of support is determined on a case-by-case basis and will be dependant on what is considered reasonable living expenses and the financial position of both partners. When the court is deciding on payments, these factors will be taken into consideration:
- Your age and health
- Your financial resources, including wage and property
- Your ability to work
- Whether the relationship affected your ability to earn an income
The payment amount will also be affected if you and your partner have children under the age of 18 or adult children with a disability as the court will take into consideration which parent is the primary caregiver.
Applications for de facto partnership maintenance must be made within 2 years of relationship breakdown and payments will be stopped if the person receiving payments enters into a new partnership or marriage.
Can my de facto partner take my superannuation?
Superannuation within a de facto relationship functions in the same way as it does for a marriage, so your former partner may be able to access your superannuation.
You and your partner can make a superannuation agreement to determine how superannuation received by either partner will be split post-separation, this will give you more control over your superannuation should your relationship breakdown. If you make an agreement that complies with superannuation laws then it is binding, meaning:
- The trustee of the fund is required to implement it
- The court cannot make a decision about the superannuation interest that is dealt with in the agreement
You should contact a lawyer if you choose to make an agreement as a lawyer will ensure the agreement complies with the law and is in your best interest. An agreement can be made during the relationship or after relationship breakdown.
If your de facto relationship has broken down and there is no agreement in place then the court can choose to split your superannuation as part of a property settlement order. Any court order made regarding your superannuation is binding and the trustee is required to implement it.
Am I entitled to a share of the estate if my partner dies without a Will?
The estate of someone who dies without a Will has their assets distributed in accordance with intestacy rules. As these rules include de facto partnerships within the definition of spousal relationships, de facto partners are entitled to the same rights and benefits as people within a marriage. This means that if your partner dies without a Will, then the distribution of their estate will be dependent on whether they had children.
- If your partner has no children, or their children are from your relationship, then you are entitled to the whole estate
- If your partner had children from another relationship then those children may be given shares in the estate
If your partner dies without a Will then you should seek legal advice as soon as possible to determine whether you are entitled to a portion of the estate, or whether you need to make a family provision claim.
At Le Brun & Associates, our dedicated team of family lawyers can help you realise and protect your rights within a de facto relationship. We provide sound and knowledgeable advice with the highest level of service to ensure you are not taken advantage of. Contact us today for your FREE 30-minute consultation. At Le Brun and Associates, we always stand by you.
