Frequently Asked Questions - De Facto Separation


How Do I Separate From My De Facto Partner?

Separation is a factual matter which is proven with facts, if it is not agreed by both parties. The date of separation is usually not disputed. However, if you think that it will be disputed then you should obtain a written proof of it as it may help if they dispute it later. The following factors are taken into account when determining whether you are separated or not:

  • Do you live in the same bedroom or in a separate bedroom?
  • Did you continue to have a sexual relationship with your spouse?
  • Did you continue to do home duties for each other, like cooking, cleaning, washing, gardening or groceries for each other?
  • Did you continue to share finances, like paying for utilities, groceries, car expenses, clothes, mobile phones, etc.?
  • Did you continue to go out as a couple? For example going out to family and friend’s gatherings as a couple?
  • Did you declare yourself separate to government agencies, like Centrelink, ATO and the Immigration Department, if applicable?

Do I Have To Register My De Facto Separation?

No. Separation is factual matter and is a decision that you make and convey to your partner.

Why Is The Date Of Separation So Important?

Date of Separation can become important for various reasons. It can effect your right to bring a claim for property settlement because there is time limit of two years after the end of your relationship to bring a claim under the Family Law Act 1975 (Cth) (“FLA”). If you are not sure if you have been separated and living under the same roof, then it is important to obtain legal advice because if you fail to bring an action within two years of separation then you will have to seek leave of the court and the leave can be rejected by the court. If leave is rejected by the court then you may lose your right to property settlement under the FLA.

Are Same Sex De Facto Relationships Dealt With The Same Way As Heterosexual De Facto Relationships?

The FLA recognises that de facto relationships can be between people of the same sex or people of the opposite sex. So, the laws apply in the same way.

What Is The Effect Of De Facto Separation On My Will?

A de facto separation has no effect on the bequests made under a Will. So, if you have left something to your former de facto partner, then that partner will still inherit it under your Will.

When Did The Current Laws Relating To De Facto Relationships Start?

The current laws relating to de facto relationships started from 1 March 2009. In South Australia, they commenced on 1 July 2010.

We Live In The Same House But In Separate Bedrooms, Are We Still In A De Facto Relationship?

Most likely not. If you have moved into separate bedrooms then it does not matter if you are still living in the same house. The law recognises people to have separated but living in the same house.

Does Our Separation Have To Be Written Down?

Not necessary. Separation is a factual element and is evidence of the breakdown of relationship. You may wish to communicate to your partner that you are separated so that the date of separation is not disputed but putting it in writing is not necessary.

My Partner Was Cheating On Me While Still In A Relationship With Me, Does That Mean Our Relationship Ended The Moment He Started Cheating?

Not necessarily. Law does not have a prohibition on people being in multiple de facto relationships. The normal rules of separation will apply.

Do I Have To Wait For Any Period After Separating From My Partner Before I Start Another De Facto Relationship?

No. Law in relation to de facto relationships does not put any prohibition on people from being in multiple de facto relationships. There is no waiting period before you can commence another de facto relationship.

Can I Claim Spousal Maintenance Even Though We Are Not Married?

Spousal maintenance is not dependant on whether you were married or not. The rules of spousal maintenance apply equally to married couple and people who were in a de facto relationship. We recommend you speak to one of our family law solicitors for further advice on spousal maintenance.

Should I See A Lawyer Before Separating Or After Separating?

It is recommended that you consult a lawyer before you separate so that you know your options early on and that you do not do anything that may jeopardise your family law proceedings in the future.

At Armstrong Legal, we provide a no obligation consultation in family law matters. Please contact us to make your initial no obligation consultation appointment.

My Partner Cheated On Me. Will He Get Less In The Property Settlement?

In Australia, being unfaithful is not a relevant factor when determining a property division.

 

WHERE TO NEXT?

Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?

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