When love is in the air, we often don’t think about the ‘what ifs.’ Sometimes, however, we have to be realistic and consider what might happen if a relationship isn’t built to last forever.
Understanding your rights when it comes to de facto maintenance in the event of separation is essential for your ongoing emotional wellbeing and financial independence.
Am I in a de facto relationship?
When two people, regardless of gender, have lived together on a genuine domestic basis for two years or more, they are considered to be in a de facto relationship according to Australian family law. Like always, there are some exceptions to this rule. If you share a child or if one person has made significant financial or non-financial contributions to the relationship, you may be recognised as being a de facto relationship even if you have not yet reached the two-year mark.
What is de facto maintenance?
De facto maintenance, also commonly referred to as de facto support, refers to the financial assistance that one partner provides to the other following the breakdown of a de facto relationship. It’s similar to spousal maintenance after the breakdown of a marriage. Mandated by the Family Law Act 1975, it’s designed to address any economic imbalances that may occur as a result of the separation and ensure both parties can maintain a similar standard of living moving forward. It can be paid as a lump sum or as regular smaller payments over a set period of time.
Do I have to go to court to determine de facto maintenance?
No, not necessarily. In many cases, couples can reach voluntary agreements on de facto maintenance without going to court. This can be achieved through their own negotiations and discussions or with the help of family dispute resolution services, such as mediation, which can be effective in resolving disagreements outside of the courtroom. During FDR, a neutral third party facilitates discussions between you and your former partner, helping you reach a mutually acceptable agreement.
If both parties reach an agreement, it is highly recommended that these arrangements are documented in a legally binding contract, known as a Consent Order, to avoid dispute in the future.
What if we can’t agree?
If you and your former partner cannot agree on de facto maintenance or if there are significant disputes over financial matters, court intervention may be necessary. Before pursuing court action, however, seeking the advice of a trusted and experience family lawyer is highly recommended. They will be able to provide guidance specific to your situation and inform you of the likely outcome should it proceed to court. This is very important as the court has the final decision, which must be followed by both parties. If you do wish to proceed to court, you must apply for a court order within two years from the date your de facto relationship ended.
How does the court decide the de facto maintenance agreement?
The court takes into consideration many factors from during the relationship as well as anticipated needs following separation. These include:
1. Financial contributions
The court considers any income, assets and other financial resources each partner contributed during the course of the de facto relationship. The court uses this information to assess the overall financial input of each party and determine if there is significant disparity the needs to be addressed.
2. Non-financial contributions
Domestic responsibilities, raising children, homemaking and other non-financial contributions are also considered by the court. While they may not have a direct monetary value, they are recognised for their impact on overall wellbeing of the family and the ability for the other partner to pursue career opportunities.
3. Future needs
The age, health, earning capacity and other resources are considered on behalf of each partner to determine their ability to maintain a reasonable quality of life following the separation.
4. Duration of relationship
Longer relationships that have developed financial and emotional interdependence over a number of years can have a significant impact on the lifestyle of each partner post-separation. As such, the length of the relationship is carefully considered by the court to determine its ongoing impact.
5. Court discretion
No two relationships are the same, and as such, the court holds some discretionary power when it comes to determining spousal support. Although these factors are all used as a guide, this power gives the court flexibility to consider a wider range of factors that may be unique to the relationship and tailor its decision to the needs of the individuals involved.
When will my de facto maintenance payments end?
There are three ways de facto maintenance payments may end:
1. The person receiving payments gets married again
2. The person paying the maintenance passes away
3. The person receiving payments improves their financial situation. This may be due to entering a new de facto relationship, significant changes to the care of their children, or their earning capacity increases.
You will need to apply to the court to end the order if any of these situations occur.
What if I can’t afford to pay de facto maintenance?
Typically, de facto maintenance is only paid if one partner can afford it and there’s a clear disparity of wealth between the two parties. If separating does not drastically change the lifestyle of one partner, then de facto maintenance isn’t usually enforced.
De facto maintenance is designed to address the economic impact of separation on both parties to ensure a fair and equitable distribution of wealth and resources. Understanding your entitlements and the factors considered by court is vital in order to continue living your life post-separation. Experienced and trusted family lawyers will help and support you through this.
