The distinction between de facto and married couples

In this video, family law partner Justine Woods talks about the distinction between married and de facto couples in the family law system.

Video transcript

Hello, hello, everyone, I’m Justine Woods. I’m the family law partner here at Cooper Grace Ward.

Distinctions between married and de facto couples

Today, we’re going to discuss some of the few distinctions between married and de facto couples in the family law system. Now, as a little piece of history, the two systems were quite separate in all of Australia until the introduction of the Federal Family Law System on 1 March 2009, and every state and territory had a different system. That meant you could be in the extremely unenviable position of, for example, conducting a parenting matter in the family court system, but separately having to run de facto proceedings in the state courts or the courts of the territories. Horribly expensive, horribly stressful, not concurrent necessarily in terms of timing. And it was recognised by the legislature that something had to be done. What we now have is a unified system, pretty much throughout Australia (although there are always some outliers), where everything happens in the one court, the same effectively, the same rules apply. The outcomes look very similar and de facto relationships which were previously regarded as highly scandalous, are now of course accepted and even really a statistically I think more common than marriages at various points. Although, here in Queensland we are the divorce capital of Australia at present, so people are still getting married. But it’s important to realise that there are some distinctions and not to fall into the traps that they create.

De facto case example

So, for example, if you get married, it’s a piece of paper. It proves the existence of the relationship. That is not necessarily the case in a de facto matter. And there is a raft of cases where one person is resisting an application for property settlement on the basis that they never actually lived in a defacto relationship with the other person, although they may have shared some form of residence for some of the time. And my own cases, for example, have featured clients who one person lived in the donga. I didn’t even know what a donga was, but that’s a long time ago. Or a demountable shed, a garage. More glamorously, there was one where they called it the carriage house. Or, for example, they start off as flatmates or increasingly carers in the older generations. So, there’s one person who says, ‘Well, yes, we had sex and we sometimes went out together and we socialised sometimes as a couple. But that wasn’t a de facto relationship’. So, then there’s a necessity for the court, or at least the parties to apply for declaratory relief. Now what that means, it’s a declaration to say, was there a de facto relationship? When did it commence? And very importantly, when did it end? Because unlike married couples, the family court’s jurisdiction is not enlivened unless people are separated, which means that in a practical sense, there are cases where people who are still married and regard themselves as in some form of intact marriage have approached the court or the court has the power to make orders about them. That is not the case in a de facto matter at all, because the way the legislation has being drafted, there needs to be separation.

Queensland case example

And there have been some very unfortunate cases and really and quite a recent one in Queensland where a former carer contended that she was the de facto partner of an elderly man. He and his adult children resisted that application and it was allowed to go all the way to trial with the applicant, alleging there was a de facto relationship and that they were still together. Now, probably quite properly, but somewhat sadly, the application was struck out and the solicitor and the barrister who ran that the whole way were ordered to pay more than $100,000 in costs. So, be very conscious that there are these little tiny minefields in family law, as in every field, that you have to navigate.

Time limits in a de facto relationship

Also, you’ve got to, there are time limits that apply. And they they’re different for married people and for de facto. So, you separate as de facto, you have two years within which to apply for a property settlement. That’s different from divorce. You can apply for a divorce which just severs the relationship and if you’re so inclined to remarry after you’ve been separated for a year and one day and then after the divorce has been granted, you’ve got another year. So, it’s roughly the same, but calculated from a different point in time. So, be conscious of that. Then if you’re out of time, you have to apply for leave, which is another layer of complexity and expense. There are other difficulties and unique aspects of de facto matters. There are cases where people have lived overseas in different jurisdictions which do not recognise de facto relationships or recognise them differently. And then that’s been relied upon by an Australian couple to say, well, our relationship was really if we were together 20 years, but for ten years we’re living in a country as de factos which doesn’t recognise that, our relationship was really only ten years. So, be conscious of those things. There’s some complexities to be aware of and you want those appropriately managed and to be made aware of them as soon as possible by your family lawyer.

If you’d like to talk about any of those issues, please don’t hesitate to contact us here at Cooper Grace Ward.