What is a de facto relationship? Does living in WA matter?
A de facto relationship sounds like a straight forward concept until you actually sit and think about it. Unlike a marriage, where the ceremony defines the marriage date, there is often a lot of confusion and disagreement as to when a de facto relationship commenced. This lack of clarity can make what seemed a straight-forward arrangement, one of the most difficult to actually define.
What is a de facto relationship? How is it worked out?
A de facto relationship is where two people, who aren’t married to each other, are committed together in a marriage-like relationship. This is any two people, regardless of gender, so includes same-sex couples.
Where there is a dispute as to whether a de facto relationship exists, there are a number of factors that are considered to determine if a couple have been living in a marriage-like relationship.
The factors considered include things such as:
the length of the relationship
whether the parties lived together
financial interdependence and financial arrangements between the parties
whether there are children
the degree of mutual commitment to a shared life
how the relationship was/is perceived by others.
Every de facto case will turn on its own facts and merits. Depending on the circumstances, it can be complicated determining if a de facto relationship actually exists. So complicated, that sometimes the Family Court is asked to make a determination on the nature of the relationship.
It is possible to be classified as being in a de facto relationship when one or both of the parties are legally married to someone else, or even where the parties are a committed couple who don't live together in the same home.
Important benefits of being in a de facto relationship
Since 2002, Western Australian de facto couples have had many similar rights to married couples, such as:
being each other’s next of kin
being able to bring property and maintenance applications in the Family Court of Western Australia
being able to claim against a deceased partner’s estate
being able to be nominated as a superannuation dependent, so that the surviving partner will receive the other partner’s superannuation benefits upon death.
I'm in a de facto relationship that's broken down. Can I access the Family Court of WA?
To be entitled to access the Family Court of Western Australia as a de facto couple, the following are required:
the parties having been in a de facto relationship for at least 2 years; or
the parties have been in a de facto relationship for less than 2 years, but a) there is a child of the de facto relationship who is under 18 years old and failure to make an order would result in serious injustice to the partner caring/responsible for the child; or b) the applying de facto partner must have made substantial contributions to property or welfare of family and failure to make an order would result in a serious injustice to that partner.
3. The parties must also have a connection to Western Australia:
a) by residing in WA for at least 1/3 of the de facto relationship; or
b) substantial financial, non-financial or homemaker/parent contributions have been made by one or both parties whilst reisiding in WA
Important differences between married couples and WA de facto couples
There are still some important differences between Western Australian married and de facto couples.
If a married couple separate, they have 12 months from the date of their divorce to attend to property settlement. In Western Australia, de facto couples must resolve their family law property settlement or commence Court proceedings within 2 years of the date of separation. If that limitation date is not complied with and contested proceedings are required, then it will be necessary to make application to the Family Court to proceed out of time - and there is no certainty such permission with be granted.
When married couples separate, their respective superannuation policies are considered an asset of the relationship. This means that married couples can split their superannuation entitlements between each other.
In Western Australia, superannuation is considered a financial resource for de facto couples. Whilst the superannuation policies can be considered as a 'financial resource', they cannot be split between de facto parties.
This can create significant difficulties for de facto couples in resolving a property settlement. please note: this position is likely to change in the near future (date not yet known) The WA parliament is currently considering legislative amendments to allow WA de facto couples to split their super. Whilst the date of this change to the law is not yet known, it has been suggested the change may occur as soon as the end of 2020.
De facto couples and Wills
If a de facto couple have Wills in place and later marry, if their Wills were not in contemplation of marriage to each other, then from 2008 onwards the marriage will invalidate the de facto couple’s Wills.
This is important for de facto couples to keep in mind.
Whilst there are differences between married and de facto couples in WA, it is important that de facto couples know they do still have rights and that they are recognised by the law.
If it matters to you, you should also give careful consideration to the type of relationship you may be in - especially for people who may consider themselves in a dating relationship, rather than a de facto relationship.
If it's important to you (especially for asset protection purposes) or you have doubts as to how your relationship is likely to be defined, it's worth consulting with a quality family lawyer so that you can properly understand your position before you have a problem.