De facto or married: what’s the difference

Did you know you might be married without knowing it?!

You might be asking yourself: when did this happen? Where is this shiny diamond engagement ring?! Well… you might not technically have put a ring on it, but in the eyes of the law you are pretty much married if you are considered to have a de facto spouse.

In the Australian Census of 2016, one in six people over the age of 15 described themselves as ‘in some sort of de facto relationship’. The chances are that if you yourself are not in a de facto relationship, someone you know is. A ‘de facto spousal relationship’ is defined by the Family Law Act 1975 as two people who are living together as a couple on a genuine domestic basis but who are not married to each other or related by family. In most cases, a de facto relationship is considered a relationship that is for two or more years in length.  

If you or someone you care about is in a de facto relationship, it is very important to consider how assets, business, property, and estate may or may not be protected.

If, for whatever reason, a de facto relationship comes to an end, it is important to know that many of your affairs will be treated as though you were married. For example, joint assets can be pooled together and split and your partner may make a claim for your savings, superannuation, business, or property. 

Our firm recently acted for a client whom had not formalised their divorce and then commenced a new de facto relationship. When the client passed away, both the ex-spouse and de facto partner had a claim on the client’s estate. As you can imagine, things can get complicated. 

Under Queensland and Commonwealth legislation, the key factors that determine a ‘de facto relationships’ are as follows:

  • The nature and extent of common residence;
  • The length of relationship;
  • Whether or not a sexual relationship exists or existed;
  • The degree of financial dependence or interdependence, and any arrangements between the parties for financial support;
  • The ownership, use, and acquisition of property;
  • The degree of mutual commitment to a shared life, including the care and support of each other;
  • The care and support of children;
  • The performance of household tasks;
  • The reputation and public aspects of their relationship.

You need to urgently review your personal and business affairs if: 

  • You enter into a de facto relationship;
  • You plan to move into a home with someone who may be deemed a de facto spouse;
  • You have not finalised your divorce;
  • You are separated (whether from a marriage or de facto relationship);
  • You plan to separate or divorce;
  • You have been in a de facto relationship for more than two years.
  • Corporate and Personal Insolvency

We understand that life can be complicated, but we believe that your legal affairs do not have to be. If you have any questions regarding how your relationships may impact your personal affairs or business affairs, we at Brandon and Gullo Lawyers may be able to help. Get in touch today for a free ½ hour telephone consultation.

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This blog is for general guidance only. Legal advice should be sought before taking action in relation to any specific issues.