Breaking Up a De Facto Relationship: Next Steps

Breaking up a de facto relationship can be a tough and emotional time. Understanding your legal rights and the steps you need to take can make the process smoother. Whether it’s dividing property, handling finances, or sorting out child support and custody, knowing what to do next is crucial.

In a de facto relationship, you and your partner share many of the same rights and responsibilities as married couples. This includes how property is divided and who takes care of the kids. Knowing these rights helps protect your interests and ensures a fair outcome for both parties.

Dealing with the end of a relationship also means seeking the right support. With that in mind, legal advice can guide you through the complexities and provide clear steps to follow. Emotional support is equally important, helping you cope with the changes and find a way forward.

Ultimately, understanding your options and getting the right help sets the foundation for a fair and manageable breakup.

Understanding Legal Rights in De Facto Breakups

When a de facto relationship ends in Australia, knowing your legal rights is important. Both partners have certain legal entitlements similar to married couples. The Family Law Act 1975 governs these relationships and outlines how property is divided and issues related to children are handled. This law applies to both opposite-sex and same-sex couples, ensuring fairness for everyone.

Understanding your legal rights helps prevent misunderstandings and protects your interests. You have the right to a fair share of property and can claim spousal maintenance if necessary. If children are involved, both parents have the right to be part of their lives and share responsibilities.

Knowing these rights makes it easier to manage the breakup. It helps ensure that both partners get a fair outcome and that any children involved have their needs met. Legal advice is crucial at this stage to help you understand your specific situation and the steps you should take next. This understanding sets a solid foundation for resolving other issues related to the breakup.

Steps for Fair Division

Dividing property and assets fairly is one of the main concerns in a de facto breakup. The Family Law Act provides guidelines on how to achieve a fair division. Here are some steps to help:

1. List All Assets and Debts: Both partners should list everything they own and owe. This includes real estate, bank accounts, superannuation, vehicles, personal belongings, and debts like mortgages and loans.

2. Value the Assets: Get accurate valuations for all assets. This might require professional appraisals for items like real estate and vehicles.

3. Consider Contributions: Look at financial and non-financial contributions from both partners. This includes income, homemaking, childcare, and any indirect contributions like supporting the other person’s career.

4. Future Needs: Consider future needs such as earning capacity, age, health, and who will be the primary carer for any children.

Protecting Your Financial Interests

Protecting your financial interests during a breakup is essential. Here are some steps to consider:

Get Legal Advice: Seek advice from a family lawyer to understand your rights and the best steps to take.
Secure Your Finances: Ensure your bank accounts are secure. Consider opening a new account in your name to protect your funds.
Document Everything: Keep records of all communications and documents related to finances and assets.
Temporary Arrangements: If necessary, seek temporary court orders to secure financial support and use of the home while the property settlement is being finalised.

Taking these steps can help ensure a fair and orderly division of property and protect your financial future. Being proactive and informed helps reduce stress and potential conflicts, making the process smoother for everyone involved.

Handling Parenting and Child Support Issues

Child Custody Arrangements

Child custody can be a major concern when a de facto relationship ends. Both parents usually want what’s best for their children. The Family Court prefers arrangements that keep both parents involved in the children’s lives. This can include shared custody or determining primary and secondary caregivers.

To create a good custody arrangement:

Focus on the Children’s Best Interests: Consider the children’s needs, stability, and emotional well-being.
Create a Parenting Plan: This plan should outline where the children will live, who will be responsible for them, and how decisions will be made.
Be Flexible and Cooperative: Being willing to compromise and communicate can lead to better outcomes for everyone.

If parents can’t agree, the court might step in to decide. The goal is always to ensure the children have a loving and stable environment.

Calculating Child Support Obligations

Calculating child support can seem complex, but it’s an essential part of ensuring children’s welfare after a breakup. Child support ensures that both parents contribute to their children’s needs, regardless of living arrangements.

To calculate child support:

Income of Both Parents: The combined income of both parents determines the amount.
Number of Children: More children often mean higher support payments.
Care Arrangements: Child support can vary based on how much time each parent spends with the children.
Additional Costs: This includes school fees, medical expenses, and extracurricular activities.

Using the Child Support Agency’s formula can help provide accurate calculations. Ensuring fair child support payments helps maintain stability and meets the children’s needs.

Seeking Legal Aid and Professional Support

Importance of Legal Advice

Getting legal advice is crucial during a de facto breakup. A family lawyer helps you understand your rights and responsibilities, making the process less stressful. They guide you through property division, child custody arrangements, and financial support issues.

Why legal advice matters:

Clarifies Legal Rights: Knowing your rights helps you make informed decisions.
Supports Fair Outcomes: Legal advice ensures that all aspects are considered and handled fairly.
Medical Expenses: Ensures your best interests and those of any children are protected.

Meeting with a lawyer early on can prevent many common issues and make the breakup process more manageable. They provide clear steps to follow and help you plan the next steps carefully.

Resources for Emotional and Legal Support

Going through a breakup can be emotionally challenging. Having access to the right resources makes a big difference.

Where to find support:

Counselling Services: Professional counsellors can help you cope with the emotional stress and provide strategies for managing your feelings.
Support Groups: Connecting with others in similar situations can provide comfort and practical advice.
Community Resources: Many communities offer free or low-cost legal clinics, support services, and advice.

Using these resources can help you stay emotionally balanced and focused on what needs to be done. They can provide the emotional and practical support needed to navigate this challenging time.

Protecting Your Rights: Ending a De Facto Relationship

Breaking up a de facto relationship involves many important steps, from understanding your legal rights to handling property division and child support. Each step requires careful consideration and support to ensure a fair and smooth process. Knowing your rights and having the right legal advice is crucial. If you’re dealing with this challenging time, seek professional support to help guide you through.

At Hooper & Mill Family Lawyers, we specialise in family law in Coolangatta and can offer the expert advice and support you need. Contact us today to find out how we can assist you in navigating your de facto breakup and protecting your interests!

Articles written by Shaun Mill, De facto

What is a de facto relationship?

Article – PDF – What is a defacto relationship

In 2008, the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 was passed and substantially came into force on 1 March 2009. This Act had the effect of integrating de facto relationships into Federal Law and thus making de facto couples covered by the jurisdiction of the Family Court and Federal Circuit Court. This is true for all states and territories bar Western Australia, who has not referred the relevant powers to the Commonwealth and therefore still deal with de facto matters under state law.[1]

The Act made amendments to the Family Law Act 1975 (Cth) (“FLA”) that extend financial settlement to parties in de facto relationships, whether they are in a heterosexual or same sex relationship. De facto parties are now eligible to seek property adjustment and maintenance orders in the same capacity as married couples have been able to in the past.

A de facto relationship is now defined in section 4AA(1) of the FLA as:

“A person is in a de facto relationship with another person If:

(a) The persons are not legally married to each other; and

(b) The persons are not related by family (see subsection (6)); and

(c) Having regard to all circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.”

The circumstances referred to at s 4AA(1) subsection (c) above are outline in s 4AA(2) and include any or all of the following:

(a) “The duration of the relationship;

(b) The nature and extent of their common residence;

(d) The degree of financial dependence or interdependence, and any arrangements for financial support, between them;

(e) The ownership, use and acquisition of their property;

(f) The degree of mutual commitment to a shared life;

(g) Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

(h) The care and support of children;

(i) The reputation and public aspect of the relationship.”

All the above factors are relevant considerations, however it is not necessary to make a finding that one or more of the above factors existed to decide whether or not there was a de facto relationship. The court has a wide discretion when determining whether a de facto relationship exists or not. This is evidenced in the legislation where it states “the court is entitled to have regard to, and attach weight to, any matters that seem appropriate to the court in the circumstances of the case.”[2]

The legislation also specifically mentions that a de facto relationship can exist if the parties are a same sex or heterosexual couple and even if one of the parties to the relationship is married to someone else or is in a concurrent de facto relationship.[3]

The courts broad discretion has been exercised in many cases since the introduction of the new legislation. In Jonah & White [4] the parties were in a 17 years relationship that the women asserted was a de facto relationship but the man asserted it was an affair. The court determined that it was not a de facto relationship due to the secret nature of the relationship, the limitations of the relationship and the fact the parties were not identified to the public as having been in a relationship.

In Allenby & Kimble [5] the court took into account emails between the parties to help determine that the parties were in a de facto relationship. This was not the only factor however, the parties shared a bedroom and the man modified his property to allow the women to operate a business out of it that he derived no financial benefit from.

In Gissing & Sheffield [6] the applicant alleged that the parties were in a de factor relationship for 17 years that started out as a business relationship and then became a personal one. The respondent claimed that there was no de facto relationship and that it was merely a business relationship. The court found that a de facto relationship existed because the parties shared a common residence for significant periods of time, conducted joint bank accounts, shared income and payments of household expenses and the perception of their relationship to other persons. The court stated that on balance the evidence indicates the parties had merged their lives and for all practical purposes they were living on a genuine domestic basis.[7]

What happens after the court makes its determination?

After taking in all the circumstances contained in the legislation and relevant case law the court can make a declaration that a de facto relationship existed or didn’t exist.[8] This declaration has the effect of a judgment of the court.[9] However the court can only make such a declaration once it’s satisfied that the applicant or both parties were ordinarily resident in the participating jurisdiction when the proceedings were commenced.[10]

Once the court has determined that a de facto relationship exists it can only make a property adjustment or maintenance order in relation to a de facto relationship if it is satisfied of any of the following factors:[11]

(a) “that the period, or the total periods, of the de facto relationship is at least 2 years; or

(b) that there is a child of the de facto relationship; or

i.- the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a),(b) or (c); and

ii.-A failure to make the order or declaration would result in serious injustice to the applicant; or

(d) -That the relationship is or was registered under a prescribed law of a State or Territory.”

The court has a broad discretion to use any evidence relevant to the case at its disposal to find that a de facto relationship existed or did not exist. There is no black and white definition of what a de facto relationship is, as each case is different from the next.

Article written by Shaun Mill

[1] Australian Master Family Law Guide p 848

[2] FLA s 4AA(3)

[3] FLA s 4AA(5).

[4] [2011] Fam CA 221 per Murhpy J.

[5] [2012] FamCA 614.

[6] [2012] FMCAfam 1111.

[7] Gissing & Sheffield [2012] FMCAfam 1111, O’Sullivan FM at paras 192-198.

[8] FLA s 90RD.

[9] FLA s 90RE.

[10] FLA s 90RG.

[11] FLA s 90SB.

Peter Hooper – Hooper Mill Family Lawyers – We are family lawyers in Brisbane. Find us searching family lawyers Brisbane; divorce lawyers Brisbane; family lawyer Brisbane; Brisbane family lawyers; family law solicitors Brisbane; divorce lawyer Brisbane; family law lawyers Brisbane; divorce solicitors Brisbane; divorce lawyers in Brisbane; best divorce lawyer Brisbane.

Articles written by Peter Hooper, De facto, Featured Articles, Property, Separation

Asset Protection, Family Law and Succession Planning

Article – PDF – Succession planning

Blended families and second marriages can be challenging; and statistically second marriages are more likely to end in divorce than first marriages.[i] For many people in this situation, often middle aged or later in life[ii], one concern is how can assets be best protected moving towards retirement and/or preserved for the children of the first marriage in the event of separation or death?

The potential claims

The potential claims that might arise from a second spouse/partner are typically those pursuant to the Family Law Act 1975 (“FLA”) with respect to property adjustment/spousal maintenance in the event of relationship breakdown[iii]; or a family provision claim.

A family provision claim is made pursuant to the Succession Act 1981 (“Succession Act”) in the event of death. This might be an issue where there are children from a first marriage who benefit under the will. A family provision claim is against the estate and arises if the deceased spouse does not make adequate provision in the will for the surviving spouse.

The difficulty for clients with respect to the above is:

High costs of family law litigation in the event of dispute; or high legal costs for the estate in family provision litigation;
These types of claims involve discretionary remedies which creates a degree of uncertainty as to the outcome;
Acrimonious dispute between spouses/partners; or between the children of the first marriage and spouse/partner.

What protection can the law offer?

Methods of asset protection such as via corporate or trust structures are of little assistance in the family law arena.-It is well settled that the real issue for the court in determining whether the matrimonial property pool ought to be expanded by trust or corporate assets is control.[iv]

Thus the court can look behind the veil and determine whether the facts and circumstances support a conclusion that assets ought to be included as “matrimonial property”.

Since 2000 (and 2009 for defacto couples) changes to the FLA make it possible for persons contemplating a relationship/marriage; or in a relationship/marriage; to contract out of the property adjustment/spousal maintenance provisions by entering into a Binding Financial Agreement.

What is a Binding Financial Agreement?

A Binding Financial Agreement is a Financial Agreement that is binding because it has met the formal requirements of the FLA necessary to make it binding.[v]-Where a Financial Agreement is binding, it removes the jurisdiction of a court to make a property adjustment or spousal maintenance order.[vi]

Thus the Binding Financial Agreement can specify matters such as how property is to be distributed, whether property brought to a relationship is to be retained or quarantined out of the property pool available for distribution, whether spousal maintenance is payable and the extinguishment of future spousal maintenance claims.

Third parties can be parties to Binding Financial Agreements and thus inter entity transfer of property is possible as well as making allowances for loans from family members etc.

What happens to a Binding Financial Agreement when a party to the agreement passes away?

A Binding Financial Agreement operates despite the death of a party and is binding on the personal representative of a party.[vii]

Opinions are divided however as to whether a Binding Financial Agreement for married couples becomes operative upon the death of a party. The significance of this would be to allow the Binding Financial Agreement to be used as a succession planning tool i.e. the Binding Financial Agreement would specify what joint property (or even property in the name of the surviving spouse) would fall into the deceased estate upon the death of a party pursuant to the Binding Financial Agreement.

The arguments for and against concern the wording of a number of sections[viii] (see endnote for explanation and why I think Binding Financial Agreements have force and effect on death) however there may be other provisions included in a Binding Financial Agreement that make a Binding Financial Agreement useful as a succession planning tool and protect against a family maintenance provision claim.

Binding Financial Agreements and family provision claims

Apart from the Binding Financial Agreement potentially being used to include or exclude assets from an estate, there is also potential to use the Binding Financial Agreement to “contract out of” the family maintenance provisions of the Succession Act.

In this respect the Binding Financial Agreement cannot remove the jurisdiction of the court to make an order because the Succession Act is Queensland legislation while the FLA is Federal legislation. Nevertheless a provision in the Binding Financial Agreement to the effect that neither party shall make a claim on the estate of the other, while not binding on a State Court, may represent important evidence of the intention of the parties and with respect to what “family provision” was considered adequate by the parties. This was the case in Queensland in Hills v Chalk & Ors (as executors of the estate of Chalk (deceased)) [2008] QCA 159–where the court said at 46:

“In this case, the voluntary statement of the parties of their mutual intentions and expectations in a form intended to be binding affords a reliable conspectus of the totality of the relationship of the parties and of their respective relationships with others who have a claim on their bounty. In my opinion, the court should have regard to such a voluntary statement by the parties of their intentions and expectations…”

Further, in other jurisdictions the succession laws have been amended to permit parties to contract out of family maintenance provisions. For example, section 95 of the NSW Succession Act 2006 provides a person may contract out of/release their rights to a family provision order[ix]. A clause can be inserted into the Binding Financial Agreement in contemplation of the succession law in Queensland being amended to allow for a similar provision.

Getting a Binding Financial Agreement?

Some people may argue that a Binding Financial Agreement in contemplation of marriage or “pre nuptial agreement” is unromantic or demonstrates a lack of commitment. Maybe…but having this discussion at a time when both parties are in love and looking to the future could also be said to be a preferable time to negotiate what is fair as opposed to during the period of emotional turmoil at the end of a relationship.

For people with children to another relationship and assets hard earned it makes sense to obtain the best protection the law can offer.

For people wanting to leave behind a legacy to children and others, rather than leaving behind court battles and an estate ravaged by legal costs, a Binding Financial Agreement can offer more certainty and protection for loved ones. Many lawyers will understand that often claims such as family provision claims may be settled and paid out even if they are without merit simply to avoid the legal costs of defending them.

The Binding Financial Agreement doesn’t have to be entered into at the start of the relationship; it can be made during and even after the relationship has broken down.

Binding Financial Agreements are very helpful provided they are created by a skilled lawyer. Strict legislative requirements are necessary to make them binding and in some circumstances they can be set aside.

Two idioms best capture the essence of Binding Financial Agreements, they are: a stitch in time save nine but a chain is only as strong as its weakest link.

[i] Australian Institute of Family Studies

[ii] 2011 Census data show that in 2011 the median age in Australia for males to become separated was 40.8 with divorce occurring at 44.4 while for females the median age for separation was 38.1 and 41.5 for divorce.

[iii] Since 1 March 2009 most de facto couples in Queensland separating after that date are able to seek remedies pursuant the Family Law Act 1975 which are in most respect the same as those available to married couples.

[iv] Deputy Commissioner of Taxation v Austin (1998) 16 ACLC 1,555; and Coventry, Coventry and Smith (2004) FLC 93-184.

[v] See sections 90G and 90UJ FLA.

[vi] See sections 71A and 90SA FLA.

[vii] See sections 90H and 90UK FLA.

[viii] Section 90H and 90UK are mirror provisions for married and defacto Binding Financial Agreements (“BFA”) except that the s.90UK provision contains a note which reads, “If the parties are still in the defacto relationship when one of them dies the de facto relationship is not taken to have broken down for the purposes of enforcing the matters mentioned in the financial agreement. Because section 90H doesn’t have a similar note it could be argued it is intended to mean death constitutes relationship breakdown for the purposes of the BFA. The difficulty with this is sections 90B(2) and 90C(2) refer to marriage “breakdown” which the definition in section 4 provides “in relation to a marriage, does not include a breakdown of the marriage by reason of death”.

The above would seem to put the matter beyond issue except for sections 90DA(1) and 90DA(1A). Section 90DA(1) requires that upon marriage breakdown, a BFA has no force or effect until a party signs a separation declaration. Section 90DA(1A) provides that section 90DA(1) does not need to be complied with if either or both spouses die. The note to section 90DA(1A) goes on to say:-“This means the financial agreement will be of force and effect in relation to the matters mentioned in subsection (1) from the time of the divorce or death(s)” (my emphasis). Thus the section clearly indicates a BFA has force and effect from the time of death.

In further support of this idea is section 90B(3)(b) and 90C(3)(b). This section provides that the BFA may contain “other matters” i.e. other matters in addition to how in the event of breakdown the property, financial resources and spousal maintenance is dealt with. It is submitted “other matters” might refer to how in the event of death the property, financial resources and spousal maintenance is dealt with.

A BFA is not terminated by death. Section 90J provides a BFA can “only” be terminated by including a terminating clause in a subsequent BFA (as referred to in sections 90B, 90C and 90D) or by making a “terminating agreement”. Therefore if the BFA is still operative, the surviving spouse could choose whether to sign the separation declaration in section 90DA(1) and give the BFA “force and effect”. Presumably this is why section 90DA(1A) was inserted and in my view gives further weight to the argument that BFA’s have force and effect on death of a party.

[ix] The release of rights to a family provision order in NSW requires the courts approval and other findings with respect to advantage to the releasing party; that it was prudent, fair and reasonable; and the releasing party had independent advice.