A de facto relationship refers to one that includes two people living together as a couple (including same-sex couples) on a genuine domestic basis; the couple is not legally married or related by family. Courts in New South Wales usually determine whether a couple is in a de facto relationship using certain criteria including the duration of the relationship, whether the couple is in a sexual relationship, their degree of financial interdependence, the care and support of children among others. It is also important to note that under the Family Law Act, a person could be in multiple de facto relationships. In addition, a married person could also be considered part of a de facto relationship.

Financial support

While it is important to understand de facto law in NSW, it usually only comes into play when the relationship breaks down. This usually applies when a person is seeking maintenance or child support. For instance, you can seek maintenance if you are unable to support yourself using your own resources, but this only applies as long as you do not marry or enter another de facto relationship. In regard to children of a de facto couple, the parent caring for a child is entitled to child support from the other parent. The same applies to same-sex parents who separate.

Succession

An individual’s de facto rights also apply in the case of succession. The Succession Act gives you the right to a share of your deceased partner’s estate if the person dies before he or she prepares a will. In addition, de facto couples enjoy the same rights to social security as legally married couples. If your de facto partner dies in the course of employment, you could be entitled to receive compensation and financial support under the Commonwealth Social Security Act.

Property

In the case of the division of property for a de facto relationship, the Family Court makes certain considerations including what each partner owned before the relationship, the net value of your current assets and the contributions made by each partner in the course of the relationship. Some de facto couples make financial agreements concerning how their assets will be managed. This could be done before moving in together, during the relationship or after separation. However, in order to be binding, such agreements must comply with certain formal requirements, which is why it may be necessary to seek legal advice.

Establishing the existence of a de facto relationship

While de facto relationships generally become effective automatically when a couple meets the stipulated criteria, it is possible to register such a relationship under the Relationships Register Act. However, in order to claim your de facto rights, you must prove that you were (in fact) in a de facto relationship. Some of the criteria used for this include demonstrating that: the relationship lasted for at least two years; you have a child or children with your de facto partner; you made a significant contribution to the property or finances of your partner or the relationship was registered under state or territory law.

When to make de facto claims

Your de facto rights concerning property and maintenance issues must be claimed within two years of the DATE OF SEPARATION, while those that have to do with children can be made at any time.

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