Rights of Married vs De Facto Couples in Financial Proceedings

Most of us know that for de-facto couples, you can’t get a divorce without first being married.

Recently a client attended our offices requesting assistance with his divorce and the division of the matrimonial assets.

When asked what date he married, the client explained he and his ex-partner never got married but they were still husband and wife.

It quickly became apparent the client has separated from his de facto partner and wanted to know his rights to effect a property settlement in the Family Court.

We explained that a de facto couple had essentially the same rights as a bona fide married couple save for certain exceptions including but not limited to:

1. Establishing a de facto relationship

To be recognised as a married couple the certificate of marriage is suffice to establish the marriage but to establish a de facto relationship a person must establish the couple lived in a marriage-like relationship may be demonstrated by a combination of factors including:

• the length of the relationship (at least 2 years or potentially less if the couple have children & failure to make a financial order would result in serious injustice)
• any periods of cohabitation
• a sexual relationship
• how finances between the parties are managed
• whether the parties own property together
• whether the parties care for or support children together
• whether the parties represent themselves as ‘a couple’ in their public interactions
• the commitment to a shared life

2. Time to initiate financial proceedings in the Family Court of Western Australia

Married people have 12 months from the date of their divorce to initiate financial proceedings, after which time they will require leave of the Court to initiate an action but prior to divorcing a married person can initiate proceedings at any time after separation.

De factos’ have a period of 24 months from the final date of separation, after which time a party will require leave of the Court to initiate proceedings.

There can be disputes over when a couple separated which is why de facto couples considering financial proceedings should seek legal advice as early as possible.

3. Superannuation

A person who is legally married can make an application to the Family Court of Western Australia for an order to ‘split’ the parties’ superannuation interests however it is not the same for de-facto couples. Even though superannuation may be considered a financial resource in a de facto relationship, a person from a de facto relationship cannot make an application for an order to split the parties’ superannuation interests.

Daniel Rice is a Senior Associate with Havilah Legal specialising in Wills and Estate Law, Family Law and Contractual and Commercial Litigation.

This website and blog is made available by Havilah Legal only to give you general information and a general understanding of the law. It is not legal advice, and should not be treated as such.

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