De facto (before 1 March 2009)
Important note:
Legislation which commenced on 1 March 2009 makes changes to the law on de facto relationships.
Couples who separate before 1 March 2009 may be able to choose for their matter to be heard under the Commonwealth legislation if both parties consent. Clients should get independent legal advice from a private lawyer to assess which legislation to apply under.
On this page:
Important - De facto relationship laws vary from state-to-state in Australia. The law concerning de facto property rights may change in the future. It's best to get legal advice about your rights. If you live interstate get advice from a lawyer in your state.
Am I in a de facto relationship?
A de facto relationship describes a relationship between a man and woman who live together as husband and wife although they are not legally married. In some cases, same sex couples can also be in a de facto relationship. There is no one legal definition of a de facto relationship as there are different requirements for different legal purposes.
What happens if there is a dispute about children?
The same family law covers disputes about all children, even if you are not married.
What happens if there is a dispute about property?
The law about dividing property is different in each state and in Queensland is different based on when you separated. To take advantage of the special laws about de facto property in Queensland, you must:
- have enough connection with Queensland - for example you lived in Queensland for part of the relationship and most of the property is in Queensland
- have separated after 21 December 1999 and
- lived together for at least two years or
- have a child together who is less than 18 years of age or
- made a substantial contribution to your de facto's property and it would cause you a serious injustice to not make a decision about dividing the property.
Are there any time limits?
There are time limits to dividing the property from your relationship. You must file your court application in a Queensland state court within two years of your relationship ending. If you don't do this, you will have to get permission from the court to apply for an order to divide your property.
What is property in de facto property settlement?
Property (or assets) includes things like houses, land, cars, boats, money in bank accounts, businesses, shares, furniture, anything in your name, your partners name or joint names. Superannuation is not an asset. But superannuation will be taken into account as a future resource for you (if it is in your name) or your partner (if it is in his or her name). Liabilities (or debts) include the mortgage, car loans, credit cards etc.
What factors does the law consider in disputes about dividing property?
The law considers how you and your ex-partner contributed to getting the property. Things the law considers include:
- Did you pay the mortgage from your wages?
- Did you care for the children?
- Did you both renovate the property?
- Did you have a gift from a relative and put that money towards a deposit to buy your car or house?
This is what the law calls financial and non-financial contributions.
The law also looks at what you or your ex-partner will need for the future. In assessing your future needs the law takes into consideration:
- how much money you earn compared to your ex-partner
- if you have the primary care of the children
- if you or your ex-partner have health problems that stop you working and therefore limit your income.
If your dispute goes to court it will make sure the property between you and your ex partner is divided in a just and fair way. The court will look at you and your partner's assets, liabilities, resources and income and how you contributed to those, both before and after separation.
Is it important to have a written agreement about de facto property settlement?
If you agree on how to divide the property, you should have this written in an agreement. An agreement can be made before separation or during the relationship or after separation. There are two sorts of written agreements. Separation agreements and recognised agreements.
A separation agreement can be made and signed by you and your partner. If your dispute continues and ends up in court, it may consider the separation agreement when dividing your property.
A recognised agreement is made by a lawyer. Certain procedures must be followed to make sure the agreement is recognised and enforceable. A lawyer must provide you with advice and sign a certificate. The Queensland Law Society can help you with a referral to a private lawyer who can prepare this document for you.
Can I change an agreement?
If you agree about changing any agreement you can do so by writing a new agreement. If you can't agree, you will need to go to court. A recognised agreement will only be varied if:
- enforcing it would result in serious injustice to a person
- it is impossible to carry it out, or
- the agreement was made fraudulently or under duress.
Who pays the cost of going to court?
Usually you and the other party will pay your own costs. The court may order the other party to pay your costs if it is satisfied there are good grounds to do so.
What happens if I was in a relationship that ended before 21 December 1999?
If you were in a de facto relationship that ended before 21 December 1999, you are not covered by the same law as those people who separated after that date. The law in this area is complex and you should get legal advice about your options.
What other rights do de facto couples have?
Centrelink
Centrelink will want to know if you are in a de facto relationship to see if you can receive a pension or benefit. Centrelink looks at the circumstances of your relationship and may ask you questions about where you live and who you live with, your financial arrangements with any person, who you socialise with, any sexual relationship you have with a person, how your friends and family see your relationship and if you have any children from that relationship. Centrelink can also find out this information by contacting neighbours, Department of Housing, real estate agents, gas and electricity suppliers, local council, or any other person they think that can provide them with details of your relationship.
If you disagree with a decision made by Centrelink about how they view your relationship, you can ask for the decision to be reviewed, and if necessary, you can appeal the decision through the Social Security Appeals Tribunal.
Wills, intestacy and testator's family maintenance application
If you have a will, you can leave property to your de facto partner (this applies to same sex and heterosexual couples).
If you or your partner dies without a will, you or your partner may be entitled to receive some property. But to be entitled to make a claim, you and your partner must have lived continuously in a de facto relationship for at least two years ending on your partner's death.
If you believe your de facto did not provide adequately for you in their will, the law may allow you to apply to the court to make a claim against the estate (testator's family maintenance application).
It is important to get legal advice because the law about having a will and how to divide property after death is complex. Strict time limits also apply.
WorkCover
If you have been in a de facto relationship and your partner dies as a result of a work related incident you may be able to make a claim for death benefits. To make a claim, WorkCover requires you to have lived with your partner at least one year before your partner's death.
Superannuation and life insurance
A person can nominate their de facto partner as beneficiary.