What is a De Facto Relationship in Australia?

Clarity Lawyers Blog De Facto

Many Australians have taken a more contemporary approach to relationships which, over time, has seen an evolution in the way relationships are legally recognised.

The term “de facto relationship” is a well-known term in Australia, and one that also has legal connotations in the Australian Family Law System.

But what exactly does this term mean, and how does it differ from a conventional marriage?

In this article, we’re going to discuss the intricacies of de facto relationships under Australian law, including how this type of relationship impacts property settlements and parenting matters.

Defining de facto relationships

In the eyes of the law, a de facto relationship is recognised when two people, regardless of their gender, live together on a genuine domestic basis.

These individuals aren’t married to each other, nor are they related by family, yet their relationship holds substantial legal significance.

A de facto couple’s partnership mirrors the commitment seen in marriages; they share a life together in a manner akin to legally married couples, albeit without the formal ceremony of marriage.

This recognition affirms the seriousness and legitimacy of their bond, granting it a weight in legal terms that parallels that of a traditional marriage.

What are the criteria for recognising a de facto relationship in Australia?

Understanding whether one is in a de facto relationship is paramount, especially when considering the potential legal implications under the Australian Family Law System. The Family Law Act 1975 outlines several de facto criteria that the court uses to determine the existence of a de facto relationship:

  1. Duration of the Relationship: Typically, the relationship should have existed for at least two years. However, exceptions can be made, especially if there’s a child born out of the relationship or if one partner has made significant contributions, either financially or non-financially.
  2. Nature and Extent of Common Residence: Simply put, this refers to living together. However, it’s not necessary for couples to live together full time. Periodic or partial cohabitation can also be considered, though the circumstances surrounding such arrangements will play a role.
  3. Existence of a Sexual Relationship: While a private matter, the existence of a sexual relationship often solidifies the nature of the relationship in the eyes of the law. It adds an intimate dimension to the partnership, differentiating it from mere friendships.
  4. Financial Aspects: The court will examine the financial interdependence between the partners. This includes joint bank accounts, shared expenses, financial support, property ownership, and other monetary arrangements.
  5. Care and Support of Children: If the couple has children, the court will consider the arrangements made for their care and support. This includes child-rearing, education, and general welfare.
  6. Social and Public Aspects: How the couple presents their relationship in public can also be a deciding factor. This encompasses joint invitations, attending events together, and the acknowledgment of the relationship by friends and family.
  7. Mutual Commitment: The court looks for evidence of a mutual commitment to a shared life. This means both partners consider and treat their relationship as long-term and exclusive to the exclusion of all others.
  8. Joint Property and Assets: Owning joint property or having combined assets like cars, homes, or investments can be a clear indication of a committed de facto relationship.
  9. If the relationship is registered: States and territories in Australia have mechanisms to allow de facto couples to register their relationship. If you’re in a registered relationship, this can make it easier to prove the de facto relationship existed.

These are just some of the ways in which a de facto relationship may be recognised. In addition to these criteria, the specific state or territory where the couple resides might have variations or additions to the definition. For instance, criteria in Western Australia may differ from that of the Australian Capital Territory or South Australia.

Clarity Lawyers Blog De Facto Relationship 1

What are the rights and obligations of de facto partners?

Being in a de facto relationship doesn’t just come with a title; it comes with both legal rights and obligations.

Under the Family Law Act, de facto partners, much like married couples, can claim property settlements and spousal maintenance. They have rights concerning property ownership, joint financial assets, and, in some unfortunate instances, the division of assets if the relationship breaks down. We discuss these in more detail below:

Financial implications of de facto relationships

When a de facto relationship ends, there may be financial and property-related matters to address. For example, parties can apply for a property settlement or spousal maintenance under the Family Law Act.

Property settlements

Property settlement refers to the division of assets and debts acquired both before and during the relationship. This doesn’t just mean physical property; it includes financial assets, superannuation, investments, and even shared debts.

Under the Family Law Act, both partners have the right to seek a fair division of these assets. It’s crucial to note that one must typically apply for property settlement within two years of the relationship’s end. However, the courts can consider applications after this period under specific circumstances.

Factors influencing property settlement include:

  • Direct financial contributions by either partner, such as wage earnings.
  • Indirect financial contributions, like gifts and inheritances.
  • Non-financial contributions, such as homemaking or caring for children.
  • The future requirements of each partner, considering factors like age, health, financial resources, care of children, and earning capacity.

As family lawyers, we want to highlight that the division of assets can be very complicated to work out as so many things should be considered. If you’re unsure where to begin or you would like guidance, you can discuss your situation with us.

Spousal Maintenance

Spousal maintenance is another critical aspect. It refers to the financial support one partner might be required to provide the other after the end of a de facto relationship, especially if one partner cannot adequately support themselves. This is determined by the needs of the applicant and the respondent’s capacity to pay.

Factors considered in spousal maintenance claims include:

  1. Age and health of the claimant.
  2. Current income, property, and financial resources.
  3. Ability of the claimant to engage in gainful employment.
  4. Responsibilities as the primary caregiver for a child.
  5. Standard of living considered reasonable in the circumstances.

Every situation is unique, so whether you think you’re entitled to spousal maintenance from your former de facto partner, or it is being requested of you, you should consider seeking legal advice.

Children within a de facto relationship

Children are a significant consideration within any relationship, and in the context of de facto partnerships their rights and the responsibilities of their parents are paramount.

The Family Law Act 1975 ensures that children from de facto relationships are treated equitably, akin to those within marriages. Parents have a responsibility to financially support their children, ensuring their overall wellbeing. This duty exists whether the parents are together as a couple, separated, never lived together, or never had any form of domestic or intimate relationship.

Upon the breakdown of a de facto relationship, decisions about whom the child will live with, the time they will spend with each parent, and other parenting matters become central. The primary concern of the law is the child’s best interests. Factors like the child’s relationship with each parent, the effect of any changes, the parents’ attitudes towards parenting, and any risk of harm are all taken into account.

Apart from emotional support, there’s the matter of financial support and one parent might be required to provide monetary support to the other parent for the child’s upbringing, known as child support. The amount is typically determined based on the parents’ incomes, the number of children, and the amount of time the child spends with each parent.

In cases where mutual agreement proves challenging, the Federal Circuit and Family Court of Australia can be approached to issue orders related to the care of children. Parents are encouraged to agree on arrangements amicably, but when disputes arise, mediation services or legal channels can be explored.

Clarity Lawyers Blog De Facto Relationship

Not sure where you stand?

De facto relationships, despite their informal nature, carry significant weight under Australian law. If you believe you’re in a de facto relationship, it’s important to be aware of your rights and options, consider the following:

  • Seek Legal Advice: Before making any significant decisions, especially those related to financial matters or children, it’s essential to consult with a legal professional familiar with family law. Family law matters are complex and easily misunderstood, but working with a family lawyer ensures you have up to date and accurate information that is relevant to your unique circumstances and you can avoid any serious injustice.
  • Binding Financial Agreement: Similar to a prenuptial agreement for married couples, the people involved in a de facto relationship have the ability to protect themselves in the event of the relationship ending. Both parties can decide on the distribution of financial assets if the relationship were to end and make an agreement for this. Obtaining independent legal advice before entering such an agreement is crucial. It’s important to note that in some circumstances, a binding financial agreement can be challenged but they can provide a level of security.
  • Application to the Court: If the relationship ends and both parties can’t come to a mutual agreement regarding asset division or child custody, they can make an application to the Court for clarity.

Determine the future of your de facto relationship today

In an era where relationships go beyond traditional definitions, understanding the intricacies of a de facto relationship under the Australian Family Law system is pivotal. Whether it’s for peace of mind, protection of assets, or assurance of rights, knowing where you stand legally can make a world of difference.

Remember, while love and commitment form the foundation of any relationship, it’s essential to recognise the legal implications of such unions, especially when the relationship has broken down.

If you find yourself in a situation where your de facto relationship has ended, you’re considering separation or you want to protect your assets, our family lawyers at Clarity Lawyers can help you.

We’re based in Newcastle and Maitland in New South Wales, but our services are available Australia-wide. Get in touch with us by calling us on 02 4023 5553 or booking a no obligation consultation online here.

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Rli Samantha@2x
Samantha Miller

Samantha has been a lawyer since 2001 having followed in the steps of her father, grandfather, great-grandfather and great-great-grandfather. No one can say she didn’t know what she was getting into!

Initially admitted in 2001 as a solicitor in NSW and Australia, Samantha moved to the UK where she was admitted as a solicitor in England and Wales in 2002. After working in several different areas of the law in large London firms, she determined that family law was her calling and hasn’t looked back.


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