Common Questions on Defacto Law in NSW

This information was obtained from the NSW Law Society Free, Quick Information Service, for more detailed information you should see a solicitor.

De facto relationships?

Some common questions about defacto 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 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.

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, or
* You are caring for a child of the other party, and the failure to make an order would result in serious injustice to you, or
* 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.
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.