What is a De Facto Relationship?

Per section 4AA of the Family Law Act, a de facto relationship exists where two persons, who are not married or related, have a relationship as a couple living together on a genuine domestic basis. A de facto relationship includes both hetrosexual and homosexual relationships.

In determining whether you have a 'relationship as a couple', the court will have regard to the following:

  • The duration of the relationship;
  • The parties' living arrangements;
  • Whether a sexual relationship exists;
  • The degree of financial interdependence between the parties;
  • The ownership, use and acquisition of their property;
  • Whether the parties demonstrate a mutual commitment to a shared life;
  • The public presentation of the relationship; and
  • Whether there are any children of the relationship.

Property

It is a common misconception that in the breakdown of a de facto relationship that property division abides by the rule 'what's yours is yours'. In Australia, however, the law on property settlements applies equally to married couples and de facto couples.

A party to a de facto relationship must bring any application for property settlement or maintenance  within two years from the date of separation. If the application is not brought within this period, the parties will have to seek the court's permission to bring proceedings. Permission will only be granted where:

  • A party or a child would suffer hardship if they are not able to bring proceedings; or
  • Where a party has sought maintenance because they are unable to support themselves.

Binding Financial Agreements

De facto couples can enter into a Binding Financial Agreement at any point during the relationship to protect their assets if the relationship breaks down. A valid financial agreement will prevent either party from applying for orders for a property settlement or spousal maintenance, except as consistent with the agreement.

The Two-Year Benchmark

Per section 90SB of the Family Law Act, a de facto couple can only seek a property orders if their de facto relationship lasted at least two years, unless:

  • The parties had a child together;
  • The relationship was registered under the relevant State or Territory laws; or
  • One party made substantial contributions and a failure to make an order would result in a serious injustice to that party.

Spousal Maintenance

Parties to a de facto relationship can seek spousal maintanence if they cannot adequately support themselves, and their partner has financial capacity to pay maintenance. The following factors will be relevant to any maintenace application:

  • The parties’ age and health;
  • Their income, property, and financial resources;
  • Whether they are responsible for the care of a child; and
  • Whether the relationship has negatively affected your ability to work.

Parenting

Any parent, child, grandparent or person concerned with the care and welfare of a child can apply for family orders. There is no distinction between children of a marriage and children of a de facto relationship.

Parenting Orders

Parenting orders set out the parenting arrangments for a child and will generally specify the following:

  • Where and with whom the child will live;
  • How much time the child will spend with each parent;
  • The allocation of parental responsibility; and
  • How and when the child will communicate with the parent they are not living with.

Child Support

If you are the primary carer of a child from a de facto relationship, you can claim child support from the other parent. Child support arrangements can be made through the Child Support Agency or private agreement with the other parent. Note that you may be liable for child support irrespective of whether or not you were a biological parent.

Registration of De Facto Relationships

Most States allow de facto couples to register their relationship. For example, in NSW, a de facto relationship can be registred with the Registry of Births, Deaths and Marriages. However, registration is only available where both parties to the relationship are over 18 and where at least one party is a resident of the State in which the relationship is registered.

Do You Need to Register Your De Facto Relationship?

You are not legally required to register a de facto relationship, and a failure to register your relationship will not affect your rights in respect of parenting, property, or maintenance under the Family Law Act. However, registration can have the following benefits:

  • It provides you with legal recognition of your de facto relationship, which makes in easier to establish the existence of the relationship in legal proceedings.
  • A registration certificate may be used as proof of our relationship for legal purpose.
  • It allows you to bring property proceedings where your relationship does not satisfy the two-year requirement.

DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.