De facto relationships in Australia

It is widely recognised that de facto relations are very common in Australia. Even so, many couples are still surprised to learn that simply living together, without being married, can create significant legal rights and obligations.

It is important to understand whether your relationship qualifies as a 'de facto' relationship under Australia law, and what this means. This becomes especially relevant when a separation occurs, particularly if property or children are involved. We break down what a de facto partner is, how these relationships are recognised in Australia, and the legal consequences that can arise when a de facto relationship ends.

How Australian Law decides if you're de facto

Under section 4AA of the Family Law Act 1975 (Cth) ( "FLA"), a de facto relationship is defined as a relationship between two people who live together as a couple on a 'genuine domestic basis' regardless of gender, and who are not legally married or related by family. The FLA sets out how de facto relationships are treated for most legal purposes, including:

1. property settlements;
2. spousal maintenance; and
3. care arrangements for children under 18.

In most cases, de facto partners have similar rights to those of married couples when the relationship breaks down, as long as certain criteria are met (outlined below). Court applications are generally made using the same forms as married couples, and the matter proceeds through similar legal processes.

Please Note: A de facto relationship can exist even where one person is legally married to someone else or in another de factor relationship.

Key Factors Court's Consider

When determining if two individuals were in a de facto relationship, the Court considerers a range of factors, including-

• Whether the relationship was registered;

• How long the relationship lasted;

• How long they lived together and what their living arrangements were;

• whether they had a sexual relationship;

• How financially dependent they were on each other, such as sharing a bank account or splitting household expenses;

• How they owned, used or purchased property;

• Their level of commitment to a shared life, including any plans for the future;

• Whether they cared for and supported any children together; and

• How they presented their relationship to others;

No single factor is decisive. The Court looks at all the evidence and considers the overall nature of the relationship.

When can you apply for Property or Financial orders?

A person in a de facto relationship can apply for a financial property settlement under the FLA if any of the following conditions are met:

1. The relationship lasted for at least two years;
2. The couple has a child together,
3. The relationship is registered under state or territory law, or
4. One partner made significant contribution during the relationship, and serious injustice would result if an order were not made.

This means that even relationships lasting less than two years may still receive legal protection in certain circumstances.

Is it possible to be in a de facto relationship without living together?

Yes, although this is an important factor, this is not essential. The Courts recognise that some couples live apart due to work, family or other commitments and can still be in a de facto relationship, if other signs of a of a genuine domestic partnership are present. In short, it's the nature and quality of the relationship that matters, not just whether you share a home.

Breakdown of De Facto Relationships: Understanding your Options

When a de facto relationship ends, both partners may have similar rights to those of married couples, including:

Property Settlement

If the Court has the authority to make financial orders (as discussed above), de facto partners can apply for a property settlement. The Court follows the same approach used for married couples.

This involves a four-step approach, where the Court:

1. Identifies the value of the assets and liabilities;
2. Assesses each partner's financial and non-financial contributions;
3. Considers the future needs of each partner; and
4. Determines an outcome that is just and equitable.

Spousal Maintenance

A de facto partner may be entitled to spousal maintenance if they cannot adequately support themselves and the other party has the financial capacity to assist.

Parenting Rights

If de facto partners have children under 18, the Court decides parenting arrangements based on what is in the child's best interests. Whether the parents were married or not makes no difference to this assessment.

How to protect yourself in a De Facto Relationship

If you are unsure whether your relationship meets the definition of a de facto relationship, or if you're going through a separation, it is wise to seek legal advice early. A family lawyer can help you-

• Determine whether a de facto relationship exists;

• Understand your rights and obligations;

• Protect assets and financial interests with a binding financial agreement;

• Navigate separation and parenting arrangements; and

• Avoid costly disputes in the future.

How can PCL Lawyers' Family Lawyers help you?

At PCL Lawyers, we understand that de facto relationships can be quite complex, especially when the legal status of the relationship is unclear. We provide clear and practical advice to help you understand your position and protect your rights and interests.

Whether you are entering, currently in, or leaving a de facto relationship, our experienced family lawyers can guide you through the legal issues with confidence and clarity.

Frequently Asked Questions

Is there a specific timeline for claiming property settlements or spousal maintenance after a de facto relationship has ended?

Applications for property settlement and spousal maintenance generally need to be filed within two years from the date of separation. If you miss this date, you may need to seek the Court's permission to proceed, and approval is not guaranteed.

What are the common misconceptions when it comes to de facto relationships in Australia?

Many individuals incorrectly assume that:

1. Living together automatically means a de facto relationship exists;
2. The parties' assets remain separate because if they are not legally married;
3. A relationship need to be long-term to be considered a de facto relationship; and
4. De facto partners have fewer legal rights in comparison to married couples.

These assumptions are incorrect. Australian law focuses on the substance of the relationship, rather than its form. Even shorter relationships, informal living arrangements, or situations where contributions are unequal can still result in legal obligations for one or both parties.

Can de facto partners protect their assets before or during a relationship in Australia?

Yes, de facto partners in Australia can enter into a Binding Financial Agreement (like a prenup or postnup) to set out how their financial assets will be protected and managed in the event of separation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.