Cohabitation, or in legal terms, a de facto relationship, is when two persons live together as a couple without the benefit of marriage. Cohabitation can occur between opposite sex couples and same-sex couples.

It is important to realise that when you agree to start living with your partner, there are legal implications of that decision. The Family Law Act 1975 governs the laws relating to cohabiting couples in Australia. This article discusses the legal matters relevant to cohabitation.

What Is Cohabitation or a De Facto Relationship Under the Family Law Act?

Simply living with someone and being in a sexual relationship with them does not in itself mean you are already in a de facto relationship. Under the Family Law Act 1975, a person is in a de facto relationship with another person if:

  • the persons do not have a marital status, or are not legally married to each other,
  • the persons are not related by family, and
  • they have a cohabiting relationship who are living together on a "genuine domestic basis."

What Constitutes a "Genuine Domestic Basis"?

While determining a "genuine domestic basis" may vary depending on your circumstances, certain factors that the Family Court will take into consideration include the following:

  • the duration of the common residence existence,
  • nature of the relationship; if it was intimate,
  • how much financial dependence or independence exists,
  • whether you have joint assets,
  • whether you have children and support arrangements (the same case goes for de facto couples who have children from a previous relationship),
  • the extent of your mutual commitment to a shared life, and
  • how people perceive your relationship - whether they see you as a couple or as housemates only.

When assessing the relationship, the Family Court looks at all of the circumstances of your case. For instance, in the case of Weldon & Levitt [2017] FCCA 3072, the Family Court decided that a couple who had an intermittent sexual relationship for 13 years and had two children together, but lived in the same house for only less than one year were not in a de facto relationship.

Registering a de Facto Relationship

Registering the de facto relationship makes your cohabitation legally recognisable. In NSW, you may apply to register the relationship if the following are met:

  • Both parties are over 18 years of age,
  • At least one of the parties resides in NSW
  • Neither one of the parties is in a registered relationship,
  • Neither one of the parties is married or related, and
  • Neither one of the parties is in a relationship with another person.

Apart from making your relationship legally recognisable, there are various reasons to register a de facto relationship such as your wish to make plans for Wills, superannuation funds or any other plans for a de facto partner.

Cohabitation versus Marriage

Although cohabitation and marriage have similarities in that they both deal with topics like debt responsibilities, division of assets, support payments, and information regarding children, there are significant distinctions between the two:

  • As to the formal steps. A couple getting married needs to obtain a marriage licence; cohabiting couples don't require any formal and legal steps to start cohabiting.
  • As to ending the relationship. Ending a marriage in Australia requires the formal process of filing for divorce or annulment, as the case may be. Cohabiting couples who have registered their relationship have to revoke that registration, which can be an informal process, depending on the terms and conditions of your Cohabitation Agreement.
  • As to the effects of death. If a spouse in a marriage dies without leaving a Will, the surviving spouse will usually inherit part of the estate. However, the surviving partner in a cohabitation relationship may not have an automatic right to any inheritance if there is no Will.

Considering Cohabitation Agreements

A cohabitation agreement is a legal document between an unmarried couple that specifies what will happen to various assets in the case of a future separation. While it is not compulsory for couples living together in Australia, a cohabitation agreement is legally binding so long as they comply with the requirements in the Family Law Act 1975.

It is a type of Binding Financial Agreement (BFA) regulated under Section 90UB and 90UC of the Family Law Act 1975. A cohabitation agreement formalises how assets, properties and superannuation will be distributed in the event of separation. This binding financial agreement can cover the following:

  • Separate assets: property or items one partner owns and retains all respective rights of ownership to after a breakup,
  • Shared assets: property or items both parties own that are divided after a breakup as agreed upon,
  • Debt obligations: joint debts that both parties are responsible for in the event of a breakup such as co-signed loans, and
  • Maintenance payments: financial support that one party might give the other partner. The partner who is experiencing financial hardship is usually the person who receives maintenance payments.

While a cohabitation agreement is not legally mandatory, the existence of one ensures that you get a say over what happens in case of separation. A cohabitation agreement also protects both cohabiting partners and minimises conflict when the relationship breaks.

Can I Get Financial Orders Over Properties After Separation?

The Family Court can only make orders on division of properties if it is satisfied that a de facto relationship did exist in the first place and if one of the following is present:

  • You have been in the de-facto relationship for at least two years;
  • Sexual relationship degree
  • You and your partner have children;
  • Your relationship is registered; or
  • It is recognised that significant contributions were being made by either you or your partner and the failure of the Court to issue an order would result in a serious injustice.

It is crucial to note that to make a claim for property settlement, there is a time limit of two years following the date of your separation.

What About Maintenance After We Separate?

People in de facto relationships can also apply for maintenance if they cannot adequately support themselves. Whether such an application is successful will depend on your needs and your former partner's capacity to pay. Factors taken into consideration include, but are not limited to each couple's:

  • Age;
  • Income, property, and financial resources; and
  • Ability to work. Family courts will also consider whether the relationship has affected a partner's ability to earn.

Your former partner would not be required to pay maintenance if it is seen that he or she is not reasonably able to do so.

Why Should You Seek Independent Legal Advice?

JB Solicitors can help you understand everything you need to know about cohabitation and de facto relationships in NSW.

Our team of expert family lawyers can help with any concerns you have regarding property settlement and entering into legal agreements with your cohabiting partner. We can also defend our client's legal rights when making a financial agreement.

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.