Do De Facto Couples in NSW have the same property and maintenance rights as Married Couples?

There are some very important differences between how the law treats married couples, as opposed to de facto couples in NSW. Our accredited family law specialists are experienced in acting on behalf of parties to de facto relationships, and can advise you of your rights and responsibilities.

Children of De Facto Relationships

Disputes about children of de facto relationships are governed by the Family Law Act , in an identical way to those involving married couples.

If it becomes necessary to take steps to protect your rights and those of your children, those proceedings are normally taken in the Family Court or the Federal Magistrates Court.

Following separation, child support rights and obligations for de facto parties are governed by the Child Support (Assessment), the same as for married couples.

Property Disputes between De Facto Couples in NSW

The property settlement rights of de facto partners in NSW (including those in same sex relationships) are governed by the Property (Relationships) Act and NSW common law.

These laws are substantially different from those that apply to married couples, whose rights are covered by the Family Law Act.

The major difference is the omission, in the NSW law for de facto couples, of any reference to adjusting property rights to take into account the future needs of each party. For example, a wife in Family Law proceedings may receive a 5% to 25% adjustment of property rights to take account of her obligations to care for children and disparities in income, whilst a de facto wife in an identical situation in NSW would obtain no such adjustment.

Starting Proceedings under De Facto Property Laws

If you wish to make a claim for adjustment of de facto property interests, that Application must be filed with the Courts not later than 2 years after the date of breakdown of the relationship. Whilst presently those claims are heard in the Supreme Court, District Court or Local Court of NSW, they are likely to be referred to the Family Court in future for determination.

Can I protect myself against a De Facto Property Claim?

De facto couples in NSW can protect themselves against claims for property settlement, by entering into a Domestic Relationship Agreement that makes provision for how assets are to be divided in the event of a future separation. These Agreements can be entered into both prior to the commencement of the de facto relationship or during the relationship itself.

They work in the same way Prenuptial Agreements do for married couples, and when properly executed, prevent a Court from making Orders that are inconsistent with the Agreement. Both parties must receive independent legal advice before entering into a Domestic Relationship Agreement, and provide a full and frank disclosure of their asset position.

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