De Facto Cases
It can be difficult to know exactly where you stand and what your legal rights are in a de facto relationship.
If you believe that you are in a de facto relationship, it is important that you speak to an experienced family lawyer that will correctly advise you of how the law perceives your circumstances. It is imperative that you receive the right advice.
Mornington Family Lawyers have extensive experience in dealing with cases that involve the question of whether a de facto relationship exists and what parties to a de facto relationship are entitled to.
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FAQ's About De Facto Case
Couples often assume that once they have been living together for a certain period of time then they are automatically in a de facto relationship. This is not always true and there are factors other than the duration of cohabitation which must be considered when determining whether you and your partner are in a de facto relationship.
Factors that will help to determine whether you and your partner are in a genuine de facto relationship include the nature and extent of cohabitation, the existence of a sexual relationship, the existence of a financial relationship, the existence of joint property, the care of children and the degree of commitment to each other and a shared life.
It is important to understand whether or not you are in a de facto relationship as it can affect your property rights and obligations if you and your partner separate in future. If you are unsure about whether you are in a de facto relationship, our lawyers at Mornington Family Lawyers can help you figure out the answer and advise you of the best way to protect your assets in case of separation.
If you and your former partner were in a genuine de facto relationship together, you have the right to apply to the Family Court or Federal Circuit Court for a property settlement (which may include a superannuation splitting order) within two years after the date of separation. If you are unable to support yourself financially, you may even be able to apply for spousal maintenance from your former de facto partner.
Our lawyers at Mornington Family Lawyers can assist you to achieve a property settlement with your former de facto partner, either through negotiation and mediation or by commencing court proceedings if necessary.
Conversely, we can assist you to draft a Binding Financial Agreement either before, during or after your de facto relationship in order to protect your assets in the event of separation.
There is no time limit for a separated de facto couple to resolve their property matters outside of court through negotiation or mediation.
If it becomes necessary to commence proceedings for a property settlement in the Family Court or Federal Circuit Court, however, separated de facto couples have two years from the date of their separation to commence such proceedings, save for exceptional circumstances where the time limits may be extended.
Our lawyers at Mornington Family Lawyers can assist you to resolve your property matters with your former de facto partner by negotiation or mediation at any stage post-separation. We can also assist you to commence Court proceedings where necessary and to apply for permission to commence proceedings outside of the two-year time limit in exceptional circumstances.
While it is more efficient and cost-effective for de facto partners to resolve their property and parenting matters outside of court once they have separated, de facto matters can be resolved at the Family Court or Federal Circuit Court where necessary.
Separated de facto partners who wish to commence Court proceedings for a property settlement must do so within two years from the date of separation, save for exceptional circumstances where the Court may allow proceedings to be commenced outside of the two-year time-frame.
There is no time limit to commence court proceedings for parenting matters, as long as there is a child under 18 years of age. It is important to remember, however, that before you initiate court proceedings for a parenting matter, you and your former partner must make a genuine effort to resolve the matter through Family Dispute Resolution save for exceptional circumstances such as family violence.
If you and your former de facto partner have been unable to resolve your parenting or property matters privately or through negotiation or mediation, our lawyers at Moonee Ponds Family Lawyers can advise you about commencing proceedings at Court.
De facto partners in Australia can enter into a ‘Binding Financial Agreement’ (BFA) either before, during or after their relationship. A BFA typically sets out how you and your de facto partner will divide your assets in the event of separation and can even make provision for spousal maintenance. A valid BFA can contract you and your partner out of a right to commence court proceedings for a property settlement.
It is important to keep in mind that if you and your partner propose to enter into a BFA at any stage of the relationship, both parties will need their own independent legal advice before signing the BFA. Our lawyers at Mornington Family Lawyers can assist you to draft up a BFA or advise on a BFA that has been drawn up by your partner’s lawyer to ensure that your assets and financial position will be preserved in the event of a separation.