When does my de facto relationship get treated like a marriage? How do I end a de facto relationship? What is separation? I want a divorce immediately, how can I get one right now? How do I officially end a marriage or civil union? Do I have to pay and support my ex-partner once we’re separated? How do we decide on the division of the property? Who gets the children after we separate? My ex and I don’t agree on who should look after the children, what can I do? What does day-to-day care mean? My ex-partner wants to take our child overseas, can they do that without my permission? My partner and I are separating, is there a law that tells us what happens to our property? What is relationship property? When does my property become shared property? Should I get a prenup? My partner died with a will, what happens to their property? My partner died without a will, what happens to their property?
If you’ve been in a de facto relationship with the same person for at least three years, then the law treats you almost like you’re married when it comes to finances. If you have been in a de facto relationship and then separate, there may be relationship property issues. Sometimes the law will treat you like this even if you haven’t been together for three years, for example, if you have children together.
To end a de facto relationship, you just stop living together as a couple. Usually, this happens when one of you moves out. It’s also possible to stop ‘living together as a couple’ if you both stay in the same house, but live in different rooms and live your lives independently of each other.
After the breakup of a long-term de facto relationship, because you may need to sort out the division of your relationship property and care of children arrangements.
If you’re married or in a civil union and your relationship ends, this is called ‘separation’. Separation is when you decide to stop living together as a couple.
Even when you’re separated, you’re still legally married. This means you can’t marry or enter into a civil union with anyone else until you’ve gone through the formal legal process to end the relationship through a divorce. But it does not stop you entering into a relationship with a new partner. This requires you to make an application to the Family Court.
If you’re married or in a civil union, you can’t get divorced straight away, there is a formal process you will need to go through before you can get a divorce. You need to have been separated for two years before you can officially file for a divorce.
To formally end a marriage or civil union, you need to get a dissolution order (the legal name for a divorce) from the Family Court. You have to fill out an application form, pay a fee and include with the application a certified copy of your marriage or civil union certificate.
The application must say that your relationship has completely broken down. You must prove this by living apart from each other for at least two years. (You can live together for a total of three months during this time if you’ve been trying to fix your relationship.) This means it takes at least two years after you separate with your partner before you can actually officially end the relationship.
You can make a joint application together or you can apply alone, but the process will be more difficult if you apply alone and your partner disagrees with you.
If you’re on a low income you might be able to get a fee waiver when applying for dissolution. You can contact the Family Court for more information.
In certain circumstances, you may be required to financially support your ex-partner for a temporary period. Generally, it is expected that after the temporary period, that each person should be responsible for maintaining themselves financially.
You can come to a voluntary maintenance agreement between yourselves. If you are unable to come to an agreement, your ex-partner could apply to the Family Court for a maintenance order. If the Family Court agrees to grant the maintenance order, you may have to pay financial support to your ex-partner.
This payment is separate from child support and relationship property.
You and your ex-partner can agree together what happens with your relationship property. If you cannot agree, you can ask a lawyer for help or apply to the Family Court for a decision. The Court, in most circumstances, will order the property to be divided equally.
Generally, both parents are the guardians of their children. As guardians, parents have the right to make big decisions about their children’s lives, such as where they will live, what school they will go to, and who they will have contact with. Guardians should make these big decisions together. Even if you break up, as guardians, you must still make decisions about your child together.
If both parents agree about care, you can have an informal agreement (e.g. not legally binding) or formalise the agreement through the Family Court. You can download the Ministry of Justice’s “Making a parenting plan” booklet, which can help you record an informal agreement.
If you need help filling out the form, contact YouthLaw or your local community law centre.
If you can’t agree about day-to-day care, then you will both need to take a “parenting through separation” course and go through family dispute resolution to try to resolve the problem together.
If you still can’t agree, then you can apply to the Family Court for a parenting order. The Judge will then decide who cares for the children and when.
The term “day-to-day” care means who will look after the children on a day-to-day basis. Generally, parents either get day-to-day care or contact arrangements. Having a contact arrangement allows you to see the children when they are not in your day-to-day care.
When making decisions on who should get the day-to-day care and for how many days a week, it’s important to put your child’s needs first. The Parenting Through Separation course can provide you with helpful information about what arrangements are best suited to your children’s ages and stages.
Whether a child is permitted to travel overseas is a guardianship decision. This means that both parents must consent to the child travelling or you must obtain an order from the court that allows you to travel overseas with a child.
The Family Court is generally supportive of children travelling overseas, as long as there is no risk that they will be kept there or other risk to their safety.
If you think your ex is taking your child overseas without your permission, you can ask the Family Court for an Order Preventing Removal. You’ll need a lawyer for this, and you may be able to get legal aid for it.
If you know that your child will be taken out of the country very soon, you will need to contact a lawyer as soon as possible and tell them how urgent it is, so they can ask for an urgent hearing if necessary.
You should start this process as soon as possible, as it will be harder to ask them to return once they’re out of the country.
If the Order is granted, the Court may:
You can also ask for a border alert which alerts Customs officers and stops the child from leaving the country.
The Property (Relationships) Act 1976 is the law that governs what happens with property when people separate. The law is based on the principle that both parties and their contributions to the relationship (financial and non-financial) are equal.
Relationship property is all the property that has been obtained by at least one of the partners in a relationship, during the period of the relationship. It could also be property that is used by both partners during a relationship. All relationship property must be divided between the partners when their relationship ends.
Relationship property will usually include:
If you don’t want to share your property with your partner after a break-up, you can make a ‘contracting out’ agreement before you get married or before you enter a civil union. Contracting out agreements, or what you may know as “prenups”, state how you and your partner will divide your property after your break-up. These agreements only count if they are in writing and signed by both partners. Both you and your partner have to separately get advice about the agreement from a lawyer, and the lawyer you talked to has to watch you sign the agreement and sign it themselves to say that they have explained it to you first.
Do note though that even if you both sign a contracting out agreement, the court can still decide to cancel that agreement if they think the agreement would result in a serious unfairness to one of the people in the agreement.
If your partner passes away, you can choose whether you want to get half of all the relationship property, or to get whatever they leave you in their will.
If your partner died without a will, you can choose between getting half of the relationship property and getting whatever you would get under a law called the “Administration Act”. The Administration Act could give you all of your partner’s property, if your partner does not have any living children or parents when they passed away. On the other hand, it might only give you the right for personal chattels (up to $155,000) and one-third of the rest, if your partner does have children.