Ending de facto (and same sex) relationships

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Do you have a legitimate de facto relationship?

Well you may be wondering whether in the eyes of the law you have a true de facto relationship. Obviously it’s important to establish this, if you want to end your relationship.

The legal definition of a de facto relationship, as mentioned in the Family Law Act (the law), is when:

                    ♥ The two of you are not legally married to each other; and

                    ♥ You are both not related by family; and

                    ♥ Having regard to all the circumstances of your relationship, you both have a relationship as a couple living together on a genuine domestic basis.

The mention of the word “circumstances” is important because the law lists what things may be taken into consideration to show a de facto relationship. In working out whether two people have a relationship as a couple it could be any or all of the following things: 

♦ The duration of the relationship.

♦ The nature and extent of their common residence.

♦ Whether a sexual relationship exists.

♦ The degree of financial dependence or interdependence, and any arrangements for financial support, between the couple.

♦ The ownership, use and acquisition of their property.

♦ The degree of mutual commitment to a shared life.

♦ Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship.

♦ The care and support of children.

♦ The reputation and public aspects of the relationship.

So if some of these circumstances can’t be proven or don’t figure in your particular relationship, it doesn’t necessarily mean it isn’t truly de facto. If needed, the court weighs up ALL the circumstances and evidence and makes a fair judgement based on the evidence and facts.

De facto relationships can exist between 2 people of the opposite sex, or between 2 people of the same sex.

How to end a de facto relationship

To end a de facto relationship that is not a registered relationship, you need to inform your ex-partner. You do not have to apply to the Federal Circuit Court of Australia, fill in any forms or receive a separation certificate.

Now although this sounds simple, if your de facto relationship isn’t registered it helps to let others know about the end of your relationship. This might be family, friends, your lawyer or someone at your nearest Community Legal Service or Relationships Australia

But on this point, please remember that your actions must reflect that you have ended the de facto relationship. When you cease to jointly wish to reside together in a genuine domestic relationship, the de facto relationship ends.

Although it’s a good idea to advise your partner of the end, it isn’t necessary.

Registered Relationships 

Registered relationships (including civil partnership schemes) provide legal recognition for a couple, regardless of their sex, by registration of the relationship under Australian state or territory laws. Many de facto relationships are registered this way.

Registration is currently recognised in the Australian Capital Territory, New South Wales, Queensland, Tasmania and Victoria. [South Australia same sex couples are also allowed to register what’s called a domestic partnership agreement.]

How to end a registered relationship

There is a fee to revoke a registered relationship (except in Tasmania).

Either or both of you can apply, and like with the end of a marriage, it’s not necessary for you to have a reason to end, or even for both of you to agree.  This should be done by applying to revoke to the relationship where it was registered in your state. If you are the only one applying to revoke the relationship you need to serve notice of the ending on your partner.

If you think it’s going to be tricky, uncomfortable or even dangerous for you to do this, there are a multiple of ways this can be achieved. 

You can give them the application form by:

♦ Putting it down in front of them and explaining what the application form is.

♦ Organising another person to give them the application form.

♦ Sending the application form by registered post, to their last known home address.

You can even seek the Registrar’s approval if you wish to serve the document by another method. However, that doesn’t include attaching it to a rock and throwing it through their window!  If you can’t find any way to do it, the Registrar may be able to dispense with the notice…but this is rare. 

Once you’ve done this it is also important to complete a statutory declaration for a single applicant, simply stating that you have given a copy of the application to your former partner and briefly explain how it was given to them. Don’t forget to include the registered post number if that’s the way it was sent. 

There is then a cooling-off period of 90 days before the registration is revoked by the Registrar. This ensures that people do not lightly make a decision to end their relationship.

As all this form filling and serving is an administrative procedure, there will be no need to engage lawyers or go to court.

The relationship is revoked 90 days after the application has been lodged.  During the 90 day ‘cooling off period’ the Registrar may seek additional information and either of you may also withdraw the application.

After a de facto relationship is over can you claim maintenance?

You can sometimes claim maintenance if you can’t support yourself after the relationship breaks down and your former partner has the means to contribute to your finances. Your entitlement to any maintenance will also end if you marry or enter into another de facto relationship.

Find out about de facto endings and property HERE