De Facto Property Rights

Across Australia, the distinction between laws and rights applying to married couples and those applying to de facto couples is becoming increasingly blurred. State and Federal laws are starting to recognise the rights of de facto spouses in much the same way as married spouses, and in 1999, Queensland introduced laws governing de facto property rights. For this reason, if you have a de facto partner, it is essential that you are aware of property laws that apply to your relationship.

Please note: the information supplied below does not apply to relationships that ended before 21 December 1999.

What is a de facto relationship?

The general definition of a de facto relationship is one in which an unmarried couple has lived together for at least two years in a genuine domestic relationship. A de facto relationship can be same sex and usually involve a couple living together in a situation resembling a marriage. You are not a defacto couple merely because you are co-tenants in a house. To determine whether a relationship is actually de facto, certain circumstances must be taken into account. These may include the length of the relationship, whether the couple have children, the degree of financial dependence or interdependence within the relationship and even the performance of household tasks.

Property disputes

The law governing de facto property disputes in Queensland is the Property Law Act 1974. In certain circumstances, a de facto spouse can make claims to property in the event of a break-up between the couple. Assets taken into account include land, assets and belongings in either name or even rights to future superannuation.

To make a claim for property, a spouse must show that they made non – financial or financial contributions to the relationship, and that there would be an injustice in failing to recognise a de facto parties’ financial or non-financial contribution. An application for a Property Adjustment/Settlement Order (issued through the Queensland State Courts) must usually be done within two years after the relationship ended.

Matters the Court takes into account when making a de facto Property Adjustment/ Settlement Order include:

• Who has legal ownership of the property (who bought it and whose name is it in).
• The age of the respective spouses and the length of the relationship.
• Whether one spouse has contributed significantly to the improvement of assets.
• Any homemaking or parenting contributions made by either de facto spouse.
• The effect of any proposed Order on the earning capacity of the parties.
• Whether the couple has a child, or whether one of the couple is caring for a child under 18.

Wills

In Queensland, a de facto may have the right to make a claim on the estate of their deceased partner, even if the de facto is not included, or not adequately included in the will. In much the same way a de facto spouse can make a claim for property once the requirements (summarised above) are fulfilled, if a couple has lived together for over two years in a genuine domestic relationship, the spouse may apply under family provision laws for a portion of their estate. In the case where a de facto spouse dies in a work related accident, WorkCover may award compensation to the living de facto spouse if they have lived together for over a year. However this is a complex area of law, and legal advice is essential for anyone expecting to make a claim on their de facto’s estate or to WorkCover.

Domestic relationship agreement or cohabitation agreement

These agreements can be made prior to a de facto relationship, during the relationship, or even after a relationship has ended and are similar to pre-nuptial agreements: a couple draws up an agreement to determine amongst themselves how to divide up property in the event of a relationship breakdown. It is important to note that such an agreement should only be made after seeking legal advice. There are specific procedures that must be followed if a domestic relationship agreement will be considered a recognised agreement by a court. Furthermore, a court will not recognize a domestic relationship agreement if enforcing it will result in injustice to one person, or if the agreement was drawn up fraudulently or under duress.

Conclusion

This is only a brief overview of this constantly evolving area of law. If you have any queries, or would like to know more about your rights as a de facto spouse, our solicitors are experienced in all areas of property and family law. Call Collas Moro Ross on (07) 5539 9099 or via our Contact Form.

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