In Australia, a de facto relationship is recognised by law and treated, in many circumstances, in the same way as a legal marriage, with the same rights regarding property settlement and parenting matters.
Yet, it’s not always immediately clear when a relationship crosses the threshold from dating or cohabiting into something officially recognised under Australian law. This article looks at what legally defines a de facto relationship, how courts determine if one exists, what this means for your legal rights, and the consequences in the event of separation.
Defining a de facto relationship
Under the Family Law Act 1975 (Cth), a de facto relationship exists when two people (whether of the same sex or opposite sex) live together on a genuine domestic basis and are not legally married or related by family.
The Family Court Act in Western Australia, which operates separately in some respects, has similar provisions that define de facto relationships for parties residing in that state.
A sexual relationship may be part of this, but it is only one factor among many. The law does not require parties to have a sexual relationship for one to be recognised. More important is whether the couple shared a life together in a way that shows mutual commitment and an intention to live as partners.
What does ‘genuine domestic basis’ mean?
This term is central to the legal test and refers to the nature and extent of the parties’ shared life. Courts will examine the circumstances of each case, taking into account various aspects of the relationship, including:
- Duration of the relationship (ideally at least two years, although there are exceptions)
- Whether a sexual relationship exists
- Degree of financial dependence or interdependence
- Joint ownership or use of property
- Degree of mutual commitment to a shared life
- Whether the relationship was registered under a registered relationship scheme in any state or territory
- The care and support of children
- Performance of household duties
- Presentation of the relationship to the public (i.e. the public aspects)
The presence or absence of any one factor is not conclusive. Courts apply a flexible approach, assessing the existence of the relationship as a whole.
How long do you need to be together?
The law generally requires a relationship to have lasted at least two years before it is recognised for property settlement and spousal maintenance purposes. However, there are important exceptions. A de facto couple may still qualify if:
- There is a child of the relationship
- One party made significant contributions, and failing to recognise the relationship would cause serious injustice
- The relationship was registered under state or territory law
In some cases, living together for at least a third of the time may also be considered relevant, particularly in relationships with frequent periods apart, which may occur due to work, travel, or long-distance commitments.
Consider a couple who began dating and moved in together after six months. They lived together for just over a year, during which time they had a child. Though the relationship lasted less than two years, the presence of a child would generally allow the court to recognise it as a de facto relationship under the Family Law Act, giving both parties the right to apply for property settlement and spousal maintenance.
Can you be in a de facto relationship while still married?
Yes. A de facto relationship can exist even if one or both parties are still legally married to someone else or involved in another civil union. The court focuses on the nature of the relationship, not the marital status of the individuals. What matters is whether the couple voluntarily entered into a relationship as a couple, with a commitment to a shared life, and lived together on a genuine domestic basis.
Things to consider before moving in with someone
Before beginning a shared residence, especially if you are financially independent or hold significant assets, it is wise to consider the potential legal rights and obligations that may arise. Ask yourself:
- Are you sharing expenses, property or bank accounts?
- Are you presenting the relationship publicly?
- Have you discussed intentions about children or long-term plans?
- Would a registered relationship make sense in your state?
- Should you consider a binding financial agreement to protect your interests?
It’s essential for a couple living together to be aware of their legal rights and obligations. If a de facto relationship breaks down, it can significantly affect your finances and future. If you are unsure if your situation would be considered de facto, it’s a good idea to get some early legal advice so you know where you stand.
Protecting assets in a de facto relationship
People often assume that their property is safe without a wedding. In reality, under Australian law, de facto couples have entitlements similar to married couples in terms of property settlement and spousal maintenance. The best protection is being aware of your rights and relationship status from early on and considering a written agreement with your partner.
You can also protect your interests through a Binding Financial Agreement (BFA), which sets out how assets and debts will be dealt with if the relationship breaks down. These are commonly referred to as a ‘prenup’ or ‘cohabitation agreement’, and give both parties certainty about their financial futures. They are enforceable under the Family Law Act, but must be entered into with proper legal advice to ensure validity.
What happens when a de facto relationship ends?
When separation occurs, either party may apply to the family court for property settlement, spousal maintenance, or parenting orders relating to any children. The court will assess each party’s contributions, financial and non-financial, as well as future needs.
Time limits apply: Parties must file applications within two years of the end of the relationship. Failing to do so may result in your claim being rejected unless the court grants special permission.
Real-life example
A woman lived with her partner for 18 months. They were not legally married, but shared rent, raised her child together, and combined some finances. After separation, she applied for a property settlement, arguing they had a mutual commitment and lived together on a genuine domestic basis. Although they didn’t reach the two-year threshold, the court accepted her claim based on her significant contributions and the child’s welfare.
Are registered relationships treated the same?
Some Australian states and territories allow couples to enter into a registered relationship. This formalises the arrangement and serves as strong evidence in court that a de facto relationship existed. However, a registration does not override the need to examine the relationship’s aspects, and courts still consider whether it was a genuine domestic basis.
Final thoughts
A de facto relationship may be voluntarily entered into, but it’s essential to know that it carries legal rights and responsibilities similar to marriage. Whether you are contemplating moving in with a partner, facing a dispute after separation, or simply wish to understand your legal rights, it is essential to be aware of how Australian law defines and handles de facto relationships.
If you’re uncertain about your rights, responsibilities or whether your relationship may be recognised under Australian law, seeking legal advice is a crucial first step. Whether you’re planning to move in, register your relationship, or navigate property or parenting issues after a break-up, a qualified family lawyer can help protect your interests and clarify your options under the Family Law Act.
Need advice about your de facto relationship?
Understanding your rights, knowing how the court approaches property matters and getting the right advice early on can help you manage your financial matters in advance, or reach a de facto property settlement with greater confidence.
If you need assistance negotiating a fair outcome, applying for orders, or protecting your financial interests, the team at Pearsons Lawyers will ensure you understand where you stand. Contact us or call 1300 699 688 to arrange a free, no-obligation chat about your situation.
