The Rise of De Facto Relationships

How Society Has Changed in 20 Years

The Australian Bureau of Statistics has recently issued new figures relating to marriage and divorce rates, the age of marriage, and changes in the structure of relationships leading to marriage.

According to the ABS, in comparison with figures from 20 years ago, Australians are marrying later, with a 16% increase in the number of couples choosing to live together before getting married.

This means that more Australians are living in de facto relationships than ever before.

In Western Australia, the Family Court Act 1997 (WA) is the prescribed Act for matters relating to de facto relationships. Whilst it is largely similar to its counterpart for married couples – the Family Law Act 1975 (Cth) – there is a significant difference in the treatment of superannuation entitlements. Put simply, it is not possible to make payments of super between de facto spouses upon the breakdown of the relationship.

Whilst this issue has been raised by industry groups and the like with a request for Western Australian Family Law for de facto couples to reflect that which is the case for the remaining states, this has yet to happen.

At the moment, in Western Australia, superannuation is considered a “financial resource” of de facto couples that might result in a percentage adjustment for one of the parties away from the division of net assets that would otherwise be the case. This particular issue has given rise to the number of people needing the assistance of Family Lawyers.

It is important to know when your relationship falls within the definition of a “de facto relationship”.

Section 13A of the Interpretation Act 1984 (WA) provides a list of several factors or indicators (that are not essential) but that assist in establishing whether or not a de facto relationship exists:

  • the length of the relationship;
  • whether the 2 persons have resided together;
  • the nature and extent of a common residence;
  • whether there is, or has been, a sexual relationship between them;
  • the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
  • the ownership, use and acquisition of their property (including property they own individually);
  • the degree of mutual commitment by them to a shared life;
  • whether they care for and support children;
  • the reputation, and public aspects, of the relationship between them.

It is also important to note that a person can still be in a de facto relationship with one person, whilst being married to another!

We Are Older When We Are Getting Married

The ABS figures tell us that Australians are also marrying later and divorcing less. The data also tells us that when we are getting divorced, we have been married for longer than was the case 20 years ago.

The age of couples marrying for the first time has risen over the past 20 years, with the groom now likely to be closer to 30 years (27.6 in 1996 compared to 30.3 in 2016) and the bride in her late 20s (25.7 in 1996 compared to 28.7 in 2016).

Noting that there is an increase in the propensity of de facto relationships, it is our view that this would be a significant contributing factor to the increase in marriage age and the decrease in divorce rates.

It is also more likely that parties will have a more significant financial standing when they enter into marriage. This becomes particularly relevant when considering how property is divided between parties at separation.

Part of the property settlement process involves consideration of the initial contributions of both parties.

When you obtain advice from a divorce lawyer, it is necessary for them to consider several factors including, but not limited to:

  • The amount of the financial contribution;
  • How this amount compares to the total net asset pool available for division;
  • The way the contribution was used (e.g., to purchase property or other joint assets?); and
  • The length of the relationship.

It is therefore helpful to have some record of what each party brought into the relationship to avoid unnecessary dispute.

With this in mind, it might be worth keeping electronic copies of bank statements, share statements and/or superannuation statements just in case your relationship doesn’t go as planned.

Regardless of your circumstances, it is important to plan for all contingencies so you are well prepared.

We often consult with clients that are not yet separated but want to be informed of the process by which property settlement can be achieved.

If you are unsure about your particular circumstances, call Dimond Family Lawyers today to make an appointment for a Fixed Fee Initial Consultation.

Source: Australian Bureau of Statistics, 3310.0 — Marriages and Divorces, Australia, 2016.

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