De Facto Separation in Australia — Your Guide to the Legal and Financial Process

If you’re thinking about breaking off your relationship and having a de facto separation — it’s important to take prompt expert legal advice. 

In most cases, de facto relationship separation entitlements are the same as those for married couples. But, if you fail to follow certain crucial steps or choose to ignore statutory time frames — you could be jeopardising your financial rights.

The De Facto Relationship Definition

Before considering de facto relationship entitlements after separation, it’s essential to examine exactly what a de facto partnership is — and perhaps most importantly — whether this applies to your circumstances.

Section 4-AA of the Family Law Act (1975) determines that two people of the same or opposite sex are in a de facto relationship if they are living together on a genuine domestic basis.

You automatically qualify if you’ve been together for two years or more without separating, or if you have registered your relationship under the Relationships Register Act (NSW, 2010).

That said, the Court may also determine that you are in a de facto relationship even if you have been in a partnership for less than two years, or don’t reside under the same roof. This will depend on numerous factors that the Court might consider, such as:

  • If you have children.
  • Whether assets are shared with your partner.
  • How long you have lived with your partner.
  • If you participated in a sexual relationship with your partner.
  • Whether you presented yourself to family and friends as a couple.

Your De Facto Separation Entitlements vs Marriage Entitlements

You and your de facto partner have virtually the same entitlements and rights under the Family Law Act as married spouses. This means that, if you split up, your assets, finances, and maintenance payments are treated in much the same way as in a marriage break-up.

Therefore, it’s seriously inadvisable to enter into a relationship — as opposed to marriage — believing that you’re protecting your interests in the event of a breakup. This is since a de facto separation settlement will consider your cash, superannuation, and property the same as in a marriage split. This still applies even if you and your ex stuck to a ‘what’s mine is mine’ approach during the partnership.

De Facto Separation Laws

If you’re planning on separating from a defacto relationship, there are no papers to sign, documents to serve, or court to attend. Although, taking the advice of an expert Family Lawyer is advisable to ensure you understand your legal rights in a de facto separation.

Legally, a separation happens when one party in a relationship decides to break relations with the other — or, both parties decide together to split. In most circumstances, the law requires three factors to be fulfilled for the de facto legal separation to have occurred:

  • One party concludes that the de facto relationship is over.
  • That party has informed their partner that the relationship is over.
  • Their actions demonstrate and support the de facto relationship split — for example, ceasing sexual relations, moving out of the home, or informing family and friends.

Does a De Facto Breakup Mean Having To Leave Home?

Under current legislation, there is no requirement for the separation of de facto relationship to mean living apart.

Admittedly, when a couple separates, one partner will typically leave the family home. But, this isn’t always practically possible, financially achievable, or in some circumstances — legally advisable. When a couple lives in one property, but is no longer in a relationship, this is known as separation under one roof.

In any future court action, you may have to provide evidence (as an affidavit) showing a split has occurred, despite living in the same property as your ex. This may, for example, include proof of:

  • Changes to sleeping arrangements — such as separate beds.
  • Informing family and friends of your split.
  • De facto financial separation — closing joint bank accounts and credit cards.
  • Informing Government agencies, such as the ATO.
  • Cessation of shared duties — such as cooking meals for your ex.

It’s important you speak promptly to defacto separation lawyers if you’re considering splitting from your partner yet remaining under the same roof. Failure to prove the split later in court could seriously affect any de facto separation property settlement.

A Crucial Step To Protect Your De Facto Separation Rights

Your first action when considering a split should be to take legal advice regarding de facto separation. A specialist Family Lawyer will provide guidance and counsel specific to your particular break-up requirements.

There is also one important step that is essential for all de facto relationship separation circumstances — making a note of your date of separation.

This date is the specific day you informed your partner the relationship was over and then acted correspondingly — such as leaving the shared home, informing your family that the partnership was finished, or making separate sleeping arrangements. 

The importance of this day is that it begins the countdown period to reach a de facto separation agreement — you have a maximum of two years to resolve and conclude your financial, property, and maintenance affairs.

Problems can occur if your partner disputes the separation date — for example, in a malicious attempt to delay or stop the settlement process. 

Therefore, on the date of separation, ensure that documentary evidence of the split exists — such as informing your partner of the end of the relationship by email, text message, or written letter. Naturally, this can be in addition to the more considerate and personal communication of relaying your break-up verbally to your soon-to-be ex.

How De Facto Relationship Division of Assets Is Decided

To ensure your de facto separation assets spit is fair — take legal advice.

An experienced lawyer will examine your and your ex-partner’s assets, the contributions you both made during the partnership, and the financial requirements you may need in the future — for example, to look after the children. 

From this starting point, you can then negotiate directly with your ex, or through lawyers or mediators.

If you reach an informal agreement on splitting assets from the de facto relationship, it’s worthwhile to have the resolution formalised with a legally binding Consent Order.

Should an agreement be impossible to reach, the matter will have to be decided in court under a property settlement. The Family Court will split any assets in a way that it considers to be just and equitable — which doesn’t always mean a fifty-fifty split.

What Happens to the Children In a De Facto Relationship Separation?

While splitting assets in a de facto relationship break-up is important — it cannot compare to the seriousness of making arrangements for your children.

In all separation parenting matters, the ideal situation is for you and your ex to come to a mutual agreement sensibly, amicably, responsibly, and maturely — without recourse to court action. Unless, of course, there are any concerns regarding neglect, abuse, or domestic violence.

If an agreement cannot be reached, the issue will be decided by the Family Court. In all circumstances, the Court will base its decision exclusively on what is in the best interests of the child or children.

Protecting Your Assets When Entering a De Facto Relationship

You can make proactive moves to prevent a de facto splitting assets scenario in the event of a relationship breakup.

A Binding Financial Agreement (BFA) is a legal document created with the assistance of a Family Solicitor. In essence, it’s a contract made between you and your de facto partner that details how assets are divided in the event of a relationship breakdown.

Often referred to somewhat inaccurately as a prenup — a BFA may be entered into at any stage. That includes before the relationship begins, during the partnership, or after a split.

Bear in mind that entering into a Binding Financial Agreement means you relinquish your rights under the Family Law Act — a framework that would otherwise work towards a just and equitable de facto split property decision.

Final Thoughts on De Facto Separations

Unfortunately, not all partnerships stand the test of time.

With de facto relationships now carrying many of the same obligations, rights, and entitlements as marriage — it’s crucial you seek legal advice promptly if you’re considering ending your partnership.

Falzon Legal are Sydney’s experts in divorce and separation. Our team of professional family lawyers will guide, advise, and navigate you compassionately through any de facto separation issues — call us today.