The term de facto relationship is given to couples who live together without being married to one another. Under Australian law, the definition extends to couples of both heterosexual and same-sex relationships. A couple may also be legally married and carry on a de facto relationship with another person.
Couples must have lived together without separation for two years for the relationship to be considered de facto. Exceptions to this rule can be made with substantial contributions to join property or children born of the relationship.
People’s rights concerning child maintenance, separation and property settlement come under the jurisdiction of the Family Law Act, 1975 (and the Family Law Act 1977 in Western Australia). The number of people choosing to cohabit without entering into marriage is increasing. The Act aims to provide a certain amount of protection to those should the relationship break down.
How Does The Law Determine De Facto Relationships?
Adequately defining de facto relationships can be tricky, mainly because some laws seem to have conflicting criteria. For example, in migration law, a couple must be able to demonstrate that they’ve been cohabiting for at least one year. At the same time, Centrelink considers the same couple to be in a relationship as soon as they start living together.
There are several factors the law looks at when deciding whether or not a couple’s relationship is classed as de facto. Each determination is made after consideration of the particular couple’s circumstances. The factors considered by the law include:
- The length of time the couple has shared a relationship.
- Whether or not the couple is married.
- Whether the nature of the relationship is sexual.
- If one or other of the pair is financially dependent on the other.
- How committed the couple is to their life together.
- Whether the couple has registered their relationship in an Australian state or territory.
- What property, if any, the couple owns and utilises.
- The support and care of any children of the relationship.
- The reputation and other public aspects of the relationship.
As mentioned above, each relationship is examined on individual merits and circumstances specific to the connection under consideration. Sometimes, couples are involved in more than one de facto relationship at once, a situation that is acknowledged explicitly in The Family Law Act 1975. That means a relationship does not have to be mutually exclusive to be defined as de facto.
When it comes to proving the duration or mere existence of a marriage, the married couple needs only to provide their marriage certificate. It is often far more challenging for those in de facto relationships, especially if the other person denies a relationship. Professional legal advice can come in handy to successfully navigate the intricacies involved in applying for court orders.
Should A De Facto Relationship Be Registered?
De facto couples can register their relationships through the Registry of Births, Deaths and Marriages in most Australian states and territories. It isn’t mandatory to register the relationship, but it does provide evidence that the relationship existed, which might prove beneficial further down the track. The relationship registration, otherwise known as a civil union, might be beneficial in creating rights for the division of property, even for those couples who have lived together for less than two years.
Couples who register their de facto relationships don’t need to prove that they’re in a relationship when applying for financial orders. Registering the relationship takes the pressure off when trying to get what is rightfully theirs if, for some reason, the partnership fails.
When De Facto Relationships Break Down
De facto relationships bear many similarities to marital ones, even when it comes to relationship endings. There is the emotional turmoil and the challenge of divvying up possessions, including children and property. When relationships break down, there are generally three ways to go about dividing up the assets.
- Coming to an agreement without the involvement of the court.
- Drawing up an agreement and applying to the court for consent orders.
- Applying for orders from the court.
Orders can be made to divide up any property either jointly or separately owned. The court can also order one party to pay spousal maintenance to the other or split any superannuation. When listing the assets, all property, including anything owned individually or jointly and property acquired before or during the relationship or after separation. The court will evaluate the forms of the contribution, both financial and non-financial, made by either person and the future needs of each person.
What Legal Rights Do People In De Facto Relationships Have?
When relationships of any kind break down, there can often be confusion around what rights each party has. People living in de facto relationships are no different. If you’ve been living in a de facto relationship and have issues related to property or children to resolve, you can apply to the courts to have them settled. In Western Australia, you would apply to the Family Court. You can choose between applying to the Federal Circuit Court or the Family Court in all other Australian states and territories. Applying to the courts to resolve your issues will be dealt with in the same way as they would if you were married and getting a divorce. Of course, you need to provide evidence of some of the following points:
- You were together for at least two years; or
- The relationship resulted in a child or children; or
- You’ve made substantial contributions, either financial or non-financial, to your partner’s property; or
- If property was not divided, you, as a parent or homemaker, would suffer a grave injustice; or
- Your relationship was registered in an Australian state or territory.
The courts will only make an order if they consider doing so to be equitable and just. Applications are usually made to the Federal Circuit Court. Sometimes, though, complex family law issues are involved, which necessitates applying to the Family Court. Such issues include:
- International relocation or international child abduction;
- Child or children requiring specialised medical procedures;
- Parenting orders contravened;
- Serious family violence involving control or serious allegations of physical or sexual abuse of a child or children.
- Complex law questions.
A person has two years following separation from their de facto partner to apply for financial orders. If you miss that two-year deadline, you can seek permission to apply from the court. If your de facto partner dies while in the relationship, your rights are the same as if you were married. That means you are entitled to:
- A share of an estate where your partner has left no will;
- The right to challenge your deceased partner’s will if you’re not sufficiently provided for;
- Compensation under workers compensation law if your de facto partner dies while working; and
- Claim entitlements from social security.
Property And Maintenance Issues
Before making any orders relating to maintenance or property issues, a court must be satisfied that a de facto couple:
- Had a child together or lived together for at least two years.
- Lived together in Australia for at least one-third of the duration of the relationship.
- Separated after March 1st, 2009.
Before the court decides whether the de-facto relationship existed or met the definition set down in the Act, they will consider the following:
- The length of the relationship.
- How long you lived together and the details of how you lived together.
- If the relationship was a sexual one.
- If either party was financially dependent on the other and any financial support arrangements you’ve both agreed on are in place.
- What property was owned, and how you came to own it.
- How property owned was used.
- Whether there was a commitment to sharing a life.
- How children of the relationship were supported and cared for.
- How other people perceived the relationship.
If you cannot prove that you were in a de facto relationship, getting legal advice from a professional can help you explore other avenues to ensure you access what is legally yours. Sometimes, there are different laws for each state and territory, or rules may change over time.
Frequently Asked About De Facto Relationships
1. What Happens If My Former De Facto Partner And I Disagree on Matters to do With Our Children?
Answer: Disputes regarding children from parents who are de facto are dealt with by the family law courts precisely the same way as those relationships where the parents are legally married. So whether it is parenting arrangements, visiting or contact, your disputes can be decided by the courts.
2. What If My Former De Facto Partner Had a Financial Agreement?
Answer: Having a binding financial agreement drawn up by your solicitor can be very beneficial when dealing with maintenance and property issues or disputes if the de facto relationship breaks down. A binding financial agreement can take the stress out of sorting out the details around property division and arrangements with any children from the relationship. Where you don’t have a financial agreement and cannot reach an agreement together, you may need to go to court.
3. Is There a Time Limit for Applying for a Court Order If My De Facto and I Split Up?
Answer: Yes. If you separate from your partner and wish to apply for a court order regarding partner maintenance or property settlement, you must do so within two years of the breakup. In special circumstances, the family law court might permit more time to get the application in.