Why you might be in a common law marriage, and not realise it.
De-facto, or ‘common law’ marriage, is where a couple is not officially married but have been living together on a ‘genuine domestic basis.’ If a de facto couple splits up, the Court may treat them the same as a married couple going through a divorce.
In reality, as a relationship progresses, you can’t be certain of exactly when or whether you and your partner are de facto married. This can be alarming for many people because uncertainty about your legal status as a couple means uncertainty about whether or not your partner has a claim over a share of your property if you were to break up. A casual relationship can easily transform into a de facto marriage; if you are considering breaking up with a long-term partner, you should be aware of what might happen after the relationship ends with regard to de-facto relationship entitlements.
How do I know if my partner and I are de facto married?
De facto marriage applies to both opposite and same-sex couples. It is also possible to be de facto with one person while married to another or to be in multiple de facto relationships simultaneously.
There are a number of specific factors that determine whether a couple is de facto married. There is no hard and fast rule, but generally, ticking more than one of these boxes is a good indicator that you and your partner are de facto:
- The length of the relationship. There isn’t a threshold in terms of time. Short relationships generally are not de facto unless there is a child involved; otherwise, it’s about two years, but the court has discretion over this.
- Whether you share a residence. The mere fact of living in the same residence is a factor indicating de facto marriage. In addition, the Court will also look at:
- The nature of the shared residence.
- Have you been living together for a long time?
- Have you mingled your belongings? Are both of your names on the lease?
- The existence, or previous existence, of a sexual relationship. This one is fairly self-explanatory.
- Your finances. Do you share income, or have a joint bank account? Does one of you support the other financially
- Do you have any shared debts?
- The ownership, use, and acquisition of property. Have you jointly purchased real estate, or a car? Do you treat your belongings as distinct from each other, or do you use them interchangeably? Do you have belongings that you consider to be shared property (including pets)?
- The degree of mutual commitment to a shared life. Do you both treat the relationship as long-term? Have you discussed your future together? Have you made changes to your career, or to your plans for yourself, to make the relationship work?
- Any children of the relationship. Do you have a child, or children together? Do you share care of any children from previous relationships?
- The reputation of the relationship. How do you present as a couple? Have you identified yourselves to others as de-facto? Have you told friends and family that the relationship is serious?
How do I know if my partner has a claim over my property if we break up – or vice versa?
Just because you are a de facto couple does not mean that the Court has jurisdiction to divide up your property. The Court can only make property orders if one or more of the following applies:
- The relationship in total has lasted over two years. If you break up and then get back together, you may be able to combine both periods of time you were together.
- You have a child together. This child does not need to be biologically related to both of you – it could be adopted, or the product of artificial conception using donated genetic material from another person.
- One or both of you made significant contributions to the other’s property, or it would be unjust not to make property division orders. This will be the case if, for example, one of you has provided substantial financial (or non-financial) support to the other, with the result that their financial position is much better than it otherwise would have been.
- The relationship is registered. De facto relationships can be recorded on State or Territory relationship registers. In some cases, this might need to be done in order for one partner to access services or entitlements for married couples.
What happens if I break up with my de facto partner?
In many cases, the parties will work out the division of property between themselves and go their separate ways.
In other cases, the parties might not be able to agree, or one party might feel that they have been left in an unfair or poor financial position. The parties can then attempt to reach an agreement with assistance from lawyers, or through mediation. If this fails, the only alternative is to file in Court.
There is a two-year time limit to do so, but in practice the Court will often waive this rule if the person filing has a genuine claim. This means property proceedings may be brought well after the end of the relationship.
Possible orders that the Court might make include:
- A property adjustment, transferring the ownership of property from one party to another, or requiring one party to pay a settlement to the other in the form of cash;
- A superannuation splitting order, causing a portion of one party’s super to be transferred into the other party’s super fund;
- Orders for the payment of child support;
- A maintenance order, requiring one party to provide ongoing financial support to the other.
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