The NSW Relationships register was established on 1 July 2010. It allows adults who are in a relationship as a couple, regardless of sex, to register their relationship, provided at least one of them lives in NSW.
To apply, each partner must fill out an application and sign a statutory declaration confirming, among other things, that they are in a relationship as a couple with the other person and are not married or in a relationship as a couple with anyone else. Registered couples are then legally recognised as ‘de facto partners’ for the purposes of most Commonwealth and New South Wales legislation.
Registering a de facto relationship is extremely beneficial. In 2008, the Family Law Act was amended by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 to allow de facto couples (including same-sex couples) to access the federal family law courts in substantially the same manner and form as married couples, in the event that their de facto relationship breaks down (see section 90SB of the Family Law Act).
Importantly, this means that if a de facto relationship breaks down the duty of disclosure found in Chapter 13 of the Family Law Rules 2004 will apply. The duty of disclosure provides that each party to a de facto relationship must “give full and frank disclosure of all information relevant to the case, in a timely manner”.
This means all information, including information that the other party might not know about, must be disclosed and the parties must continue to provide information as circumstances change or more documents are created or come into a party’s possession, power or control (see reg 13.01 of the Family Law Rules 2004).
In property and financial cases, parties to a de facto relationship must provide full and frank disclosure of their total direct and indirect financial circumstances. This requires disclosing all sources of earning, interest, income, property and other financial resources, whether coming to the party directly, indirectly, or being held in corporations, trusts, companies or other such structures (see reg 12.02 and 13.04 of the Family Law Rules 2004).
A failure to make a proper disclosure can have serious consequences. For example, the Court can dismiss all or part of the proceedings, order costs against you or refuse to allow you to use the information as evidence in your case (see reg 13.14 of the Family Law Rules 2004).
Following disclosure, the Court will examine the parties’ contributions to the relationship and make appropriate financial and property adjustments. However, it is important to note that pursuant to s.90SB of the Family Law Act, the Court may only make orders in respect of maintenance and/or division of property if it can be satisfied that a de facto relationship existed in the first place (within the meaning of section 4AA of the Family Law Act) and then, only if one of the following criteria existed:
- the period (or the total of the periods) of the de facto relationship is at least 2 years; or
- there is a child of the de facto relationship; or
- one of the partners made substantial financial or non-financial contributions to their property or as a homemaker or parent and serious injustice to that partner would result if the order was not made; or
- the de facto relationship has been registered in a State or Territory with laws for the registration of relationships.
Here, the benefit of a de facto registration certificate is two-fold: it can help a party prove the existence of a de facto relationship (see s 4AA of the Family Law Act) and it is one of the four criteria essential for the Court to make a financial or property adjustment.
Without a registration certificate, parties are vulnerable to the existence of the relationship being disputed and the Court declaring that a de facto relationship did not exist. The inevitable result of this is that the Court will not have the power to adjust the parties’ property interests unless it is absolutely necessary and the duty of disclosure will not apply because the Court will have no jurisdiction to order it.
Further, even if a de facto relationship is found to exist, without a registration certificate parties are still vulnerable to a lack of jurisdiction to intervene due to the operation of s.90SB.
If you have any questions as to whether or not you are in a de facto relationship and the consequences of this, please contact our office and speak to one of our solicitors.
