In Western Australia, a de facto relationship generally exists where two people who are not married to each other live together in a marriage-like relationship, with the Court considering the circumstances of the relationship as a whole. De facto partners may have rights relating to property settlement, maintenance, financial agreements and deceased estates. The article also notes that superannuation is considered when dividing property, although different rules apply to de facto couples regarding splitting or flagging superannuation entitlements.
What is considered a de facto relationship in Western Australia, and what legal rights do de facto partners have?
Our Family Team discusses this topic
Summary
De facto relationships in Western Australia are determined by considering the circumstances of the relationship as a whole, including how long the couple has been together, their living arrangements, financial interdependence and commitment to a shared life. De facto partners, including same-sex couples, may have rights relating to property settlement, maintenance, financial agreements and deceased estates. The Family Court may also consider each partner’s superannuation when determining how property should be divided.
What Is a De Facto Relationship in Western Australia?
A de facto relationship is defined in s 13A of the Interpretation Act 1984 (WA). In Western Australia, a de facto relationship is a relationship where two people (regardless of gender) who are not married to each other live together in a marriage-like relationship. A consideration of the entire circumstances of a relationship will determine whether a relationship is de facto or not. You can be in a de facto relationship if you are legally married to someone else or in another de facto relationship.
The court looks at the following circumstances when deciding if you are in a de-facto relationship:
- The length of the relationship;
- Whether you lived in the same residence;
- The nature and extent of you common residence;
- Whether there is, or has been, a sexual relationship between you;
- The degree of financial dependence or interdependence, and any arrangements for financial support, between you;
- The ownership, use and purchase of your property (including property you own individually);
- The degree of mutual commitment by you both to a shared life;
- Whether you care for and support children; and
- How your relationship as a couple is perceived by others.
Under Western Australian law, de facto relationships include same-sex relationships. It also allows people in de facto relationships to be on almost equal standing as those who are married. With the average wedding costing over $40,000 dollars it’s no wonder people are postponing or re-thinking the need to tie the knot. Legal rights of a de facto partner can include:
- Property and maintenance claims in the family court.
- Ability to enter into a financial agreement with partner.
- Partner’s next of kin.
- The right to claim against a deceased partner’s estate.
De facto partners are not able to seek orders to “flag” or “split” their superannuation entitlements. These options are only available to parties who were legally married.
This does not mean that the Court does not take superannuation into account when deciding how to divide property between de facto partners. The Court is, in fact, required by the law to consider the superannuation entitlements of both parties.
Can the Family Court of Western Australia make decisions about property issues if I am in a de-facto (including same-sex relationship)?
In WA de facto partners can only make application for property orders or for partner maintenance if they separated on or after 1 December 2002.