URGENT Help!!!!!!!!!!!!?

Question

Can you please help me in de facto relationship and marriage. What is de facto relationship in this western and the australian OR PLEASE GIVE ME THE SITE FOR IT!!!!!!!!

Answer 1

Introduction
A de facto relationship exists where two people live together as if they were married but without having gone through a religious or civil marriage ceremony. A couple living in a de facto relationship do not have the same legal obligations and protection as a married couple. The definition of 'de facto relationship' is not consistent and depends on the particular area of law. For example, in some areas homosexual relationships are recognised while in others they are not.



In general, de facto relationships are a matter for State Governments because they are outside the Constitutional powers of the Commonwealth Parliament. Some de facto relationships are recognised by certain Commonwealth Acts for certain purposes, such as migration, (see: immigration) and pensions, see: pensions, benefits and allowances.

However, the Family Law Act 1975 (Cth) treats all children the same, whether their parents are married or not, see: children. Under South Australian State law , the fact that a child's parents are unmarried is irrelevant if the child wants to dispute a deceased parent's will, see: wills, estates and funerals.



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Legal rights following the death of a spouse

In South Australia, legal recognition is given to certain types of de facto relationships by the Family Relationships Act 1975. This Act created the legal status of putative spouse. However, not all de facto partners are putative spouses. Only people in heterosexual relationships can be recognised as putative spouses [Family Relationships Act 1975 s.11(3)]. In addition, to be regarded as putative spouses, a man and a woman must have lived together as husband and wife for at least five out of the last six years, or have had a child together (Family Relationships Act 1975 s.11(1)).


A putative spouse who has not been adequately provided for under the deceased partner's will, may apply under the Inheritance (Family Provision) Act 1972, for a sum of money from the deceased's estate [s.6(a)]. If the deceased did not leave a will, a surviving putative spouse is entitled, under the intestacy provisions of the Administration and Probate Act 1919 [s.72h(1)], to share in the distribution of the estate, and if the deceased was a contributor to a superannuation scheme, the surviving putative spouse may apply to the administrators of the scheme for a spouse's pension, (see: wills, estates and funerals).


If an employee is killed at work and their putative spouse and his or her children were wholly or partially dependent on that person, they can make a claim under the Workers Rehabilitation and Compensation Act 1986 [ss.3(1),44(1)]. If the death was caused by the negligent act of a third party (for example, in a road accident), the surviving putative spouse may claim damages from the third party. These damages will cover both economic loss (that is, loss of future financial support) and solatium (emotional loss).



Before any of these claims can be made, the putative spouse must first have obtained a declaration from the court that he or she was a putative spouse on the date of death.


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Legal rights following separation

When a de facto relationship breaks up, the rights of the partners in the relationship are different from those of a married couple who separate or divorce.



Unlike a married person, a person in a de facto relationship cannot claim maintenance for her or himself from the other. However, a person caring for a child born outside marriage can claim child support from the other parent in the same manner as for a child of a married relationship, see: child support. Where the child is in the care of the mother and the father's name is not on the birth certificate, and he does not sign a statutory declaration to formally admit paternity, it will be necessary to first establish paternity in the Family Court.



The De Facto Relationships Act 1996 which came into operation on 16 December 1996 aims to facilitate the resolution of property disputes. The Act does not deal with other problems that may arise at the end of a de facto relationship.



This Act only applies to heterosexual relationships where the partners have lived together on a 'genuine domestic basis' (the courts are yet to define what this means). Either the relationship must have existed for three years or there must be a child born to that relationship. The three years spent living together do not necessarily have to be continuous. If there have been separation periods during the relationship, the distinct periods of cohabitation may, in some cases, be added together to calculate the duration of the de facto relationship [Wren v Chandler [2004] SADC 128]. The Act only applies to relationships that ended on or after 16 December 1996 [s.4] and where the de facto partners were resident in South Australia for the whole or a substantial part of the period of the relationship.



For de facto relationships not covered by the De Facto Relationships Act 1996, rights to property on the breakdown of a de facto relationship are governed by the ordinary common law rules of property, trusts and contract.

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Agreements about property

A couple living or intending to live together can make an agreement about property. Although some couples are concerned about doing this, it is a prudent step as it helps to clarify just what they intend to happen. Often disputes can be prevented just by being clear in advance. The agreement should include a list of the property owned by each partner and details of who is to keep which items, or how items will be divided, if the relationship ends.


It is best to do this before moving in, but it is better late than never. The agreement may not give you absolute legal protection, but it will be valuable evidence if the matter ever goes to court.

Agreements can be verbal, but it is much better to have them in writing. There is no standard form but it is preferable to have a solicitor draw up the agreement so that it will be quite clear. Disputes are dealt with under the law of contract [De Facto Relationships Act 1996 s.6].


Future disputes can be minimised by not putting property into joint names unless each person contributes equally, and by keeping a record of who pays for items purchased, as well as keeping receipts. Also, avoid making statements that property is 'ours' or 'shared' unless that is your real intention.


The Act allows de facto partners to make cohabitation agreements saying how property will be divided should the relationship end or concerning other financial matters of the relationship [De Facto Relationships Act 1996 s.5(1)]. To be enforceable under the Act, a cohabitation agreement must be in writing and be signed by both partners [De Facto Relationships Act 1996 s.5(2)].


Once a cohabitation agreement has been made it can be varied or revoked by written or verbal agreement [De Facto Relationships Act 1996 s.7(1)] (unless the agreement is a 'certificated agreement' in which case it can only be varied or revoked by another certificated agreement [De Facto Relationships Act 1996 s7(2)]). A court may also set aside or vary a cohabitation agreement if satisfied that enforcement of the agreement would result in serious injustice [De Facto Relationships Act 1996 s.8(1)]. This does not apply where there is a 'certificated agreement' that specifically excludes the court's power to set aside or vary the agreement [De Facto Relationships Act 1996 s.8(3)]. Where a court can reopen a cohabitation agreement, it can restrain a person from entering into a transaction that might defeat an order, or an anticipated order, for the division of property [De Facto Relationships Act 1996 s.14(2)].



If a cohabitation agreement can be reached the parties have the option of making it a certificated agreement which has additional requirements. These are:
a 'warrant of asset disclosure' (each person warrants that s/he has disclosed all relevant assets)
in addition to signing the agreement, each partner must receive independent legal advice and obtain a 'lawyer's certificate' (where the lawyer declares that the person understands the full meaning of the agreement).

Generally it would appear that once a certificated agreement has been entered a court cannot overrule the agreement, even if it is unfair, if the agreement specifically excludes the court's power to set aside or vary the agreement. However, if there has not been full disclosure, or there has been fraud, duress, etc it may be possible that a court may be able to reopen the matter.


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Property Disputes

Like the Family Law Act 1975, the De Facto Relationships Act 1996 does not give a person an 'automatic' share of her or his de facto partner's property but there are a number of considerations that a court will consider when determining what entitlements that person has, see: principles used by the court. To apply to a court all of the following requirements [De Facto Relationships Act 1996 s.9(1)] must be met:
the applicant or respondent must be resident in South Australia when the application is made
the de facto partners were resident in the State for the whole or a substantial part of the period of the relationship
the de facto relationship was between a woman and a man and existed for at least three years or there is a child of the relationship [De Facto Relationships Act 1996 s.9(2)] (ie partners are the natural parents, adoptive parents or the female partner is the child's mother and the male partner is presumed to be the child's father under Australian law [De Facto Relationships Act 1996 s.3]).

Applications must be made within one year after the end of the de facto relationship unless the court, after considering the interests of both parties, is satisfied that an extension is necessary to avoid serious injustice to the applicant [De Facto Relationships Act 1996 s.9(3)].


The type of property that a court can consider is broadly defined [De Facto Relationships Act 1996 s.3] and includes:
a prospective entitlement or benefit under a superannuation or retirement scheme
property held under a discretionary trust that could, under the terms of the trust,
be vested in the person or applied for the person's benefit
property over which the person has a direct or indirect power of disposition and which may be used for the person's benefit
any other valuable benefit.

Given the potential future size of superannuation entitlements it is very difficult to determine in which court to issue proceedings. If the total amount is $6000 or less the application is a minor civil action in the Magistrates Court. Greater amounts up to $80 000 are dealt with in the civil division of the Magistrates Court. Larger claims may be taken in the Supreme or District Courts [De Facto Relationships Act 1996 s13], see: the legal system.



Disputes over property between couples who are not married are not generally heard in the Family Court of Australia except in rare and exceptional circumstances. There must be other relevant proceedings, that is, residence or child maintenance from which the property proceedings cannot easily be severed for the Family Court to hear it. This power is vested in the Family Court by the Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth) and Jurisdiction of Courts (Cross Vesting) Act 1987.



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Principles used by the court in property disputes

A court has powers [De Facto Relationships Act 1996 ss.11,14] to consider matters relevant to the just and equitable division of property and in particular will consider:
the financial and non financial contributions made directly or indirectly by or on behalf of the de facto partners to the acquisition, conservation, or improvement of property of either or both partners; or the financial resources of both partners
the contributions (including home-making or parenting contributions) made by either of the de facto partners to the other partner or to children of the partners or either of them
any relevant cohabitation agreement. If it is a certificated agreement that states the Court has no power to set aside or vary the agreement, any order for the division of the property must be consistent with the terms of the agreement, see: property disputes.
all interests in the property to which the proceedings relate
other relevant matters, which includes the length of the relationship and the immediate financial needs of the parties [Hogg v Roberts (2003) 87 SASR 248]

When deciding the division of property, the court may make orders it considers necessary to divide the property of either or both the de facto partners between them in a way that is just and equitable [De Facto Relationships Act 1996 s.10(1)]. For example the court may make orders:
to transfer property from one de facto partner to the other
to sell property and divide the net proceeds between the de facto partners in proportions decided by the court
that one de facto partner pay a lump sum of money to the other [De Facto Relationships Act 1996 s.10(2)]
to set aside any transactions that have been entered into to avoid the division of property although a purchaser who innocently buys a property in good faith, paying a reasonable value, can keep it [De Facto Relationships Act 1996 ss.14(1),15].

As far as practicable the court will attempt to finalise all matters to avoid further proceedings between the parties [De Facto Relationships Act 1996 s.12]. However, the Act does not exclude other forms of remedy or relief [De Facto Relationships Act 1996 s.16].


Where one of the partners dies, an application for the division of property may be made or continued by or against the legal personal representative of that partner [De Facto Relationships Act 1996 s.9(4)]. This application may only relate to property that is undistributed at the date of the application.



At the conclusion of a court case the loser is often ordered to pay the winner's legal costs. This does not always apply in the Family Court but is usual in the Magistrates, District and Supreme courts. Although the De Facto Relationships Act 1996 does not specifically deal with the question of costs, presumably the court will make orders for costs at the conclusion of a case.



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Stamp duty

Where de facto partners have lived together continuously for at least five years, there is no stamp duty payable on the breakdown of the relationship for the transfer of:
the matrimonial home (their principal place of residence of which both or either of them is the owner), or
the registration of a motor vehicle [s.71CB, Stamp Duties Act 1923], see: taxation

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Property and de facto relationshipsnot covered by the De Facto Relationships Act

For de facto couples not covered by the De Facto Relationships Act 1996, (that is, same sex couples or those living together for less than 3 years and have no children together) the following principles apply. If the property in dispute is in joint names, the court will usually order that the property be divided equally unless it can be shown that one person should receive more. If it is in the name of one partner only, there are several legal concepts that can be used by the other de facto spouse to support a claim to an interest in the property. Whichever remedy, or combination of remedies, is used by a de facto spouse who is seeking to enforce property rights, each case finally depends on its facts. The following list sets out the most common of the possible remedies. The law in this area is extremely complex and legal advice should be sought by anyone who wants to make a claim under any of these arrangements.



If one de facto spouse clearly states that he or she holds certain property for the benefit of the other, this amounts to an express declaration of trust. This is not effective as far as real property (a house or land) is concerned unless the declaration is in writing. The only exception is in cases where the lack of writing would amount to equitable fraud.



There is an implied trust where property is held by one person with an unexpressed or presumed intention that some other person has an interest in it - for example, where, on the purchase of property, some of the purchase price is paid by someone other than the purchaser. To find out if there is an implied trust in a particular case, it is necessary to examine:
what kind of contribution was made and whether that contribution was intended as a gift
if there was a gift, what was the real, rather than the presumed, intention of the person making the gift.

A constructive trust is difficult to define. It could be said that it is a trust imposed by the court in order to satisfy the demands of justice and good conscience, without any reference to the express or presumed intentions of the person involved. Courts have found that a constructive trust exists in some cases where one party worked on building or renovating a house, but not in others where there was responsibility for ordinary housework and maintenance. Decisions have gone either way depending on the particulars of each individual circumstance.



De facto couples can confer property interests on one another by the use of an express contract. Express contracts should be in writing and conform with the normal laws of contract. Sometimes a court will find that there was an implied contract. The court presumes that, as reasonable people, the partners would have agreed to a certain contract. Its use is limited to appropriate situations.



A de facto spouse may rely on the concept of proprietary estoppel in support of a property claim where the spouse has spent money or otherwise disadvantaged him or herself:
while acting on the mistaken belief that he or she already owns, or will own, an interest in property sufficient to justify the expenditure
while the real owner of the property actively or passively encourages the mistaken belief
where there is no bar under the rules of equity to the granting of a remedy.

Legally binding gifts between de facto spouses can be made in three ways:
by clear words in a deed (document)
when a person intends to pass property to the recipient and actually delivers it to the recipient
when a person intends to pass property to the recipient and the person's actions amount to the delivery of the property to the recipient.

The Family Mediation Service at Relationships Australia, Centacare, or private mediators can assist in resolving de facto property disputes. There is usually a fee for these services.

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Answer 2

A de facto relationship, by law, is a relationship similar to marriage without going through the ceremony. You live together, you might have children or joint bank accounts or whatever. In Australia to take advantage of benefits available, you have to declare the relationship to be de facto. Once that is done, there is no difference in law between a de facto relationship and a marriage.

Answer 3

De facto... in a relationship and marriage usually means; consumed relationship or living together for a period of time, even without being legally married.

Answer 4

that means living together as husband and wife without being married under the law.

Answer 5

perhaps love romance and sum thing that.