How is a de facto relationship defined in Australia?

How is a de facto relationship defined in Australia?

By cropped Clara Suki

· Read time: 4 minutes

A de facto relationship is when two individuals are not married, but are in a relationship and live together as a genuine couple. 

This does not mean that every de facto couple has to be living together continuously. The law has regard to all the circumstances of a relationship to determine whether a de facto relationship exists. 

How is a de facto relationship defined in law? 

In Australia, a de facto relationship is defined in Section 4AA of the Family Law Act 1975. 

The circumstances that a court will have regard to in determining whether you and your partner are in a de facto relationship include: 

  • The length of the relationship (specifically whether the couple has been living together for longer than a two year period);
  • Whether there is a sexual relationship between the parties; 
  • Whether there are any children of the relationship;
  • The nature and extent of any shared residence; 
  • Whether or not the parties were financially dependent upon each other and the extent of dependence; 
  • The public aspects of the relationship;
  • The ownership and use of property in the relationship.

Courts have made clear in previous assessments of de facto relationships that there is no need for all the above criteria to be satisfied to prove the existence of a de facto relationship. It is also notable that there is no specific factor that is held as more important than the others in determining whether a de facto relationship exists. Courts have generally adopted a view which considers all the circumstances of the case. 

The law will not recognise that you are in a de facto relationship if you and your partner are legally married to one another or if you are familially related. 

The NSW relationship register 

Another option for those in de facto relationships would be to register their relationship with the NSW relationship register. This can be done online with Services NSW. The NSW relationship register legally recognises relationships and can make it easier for de facto couples to prove that they are in a de facto relationship. This can make it easier for those in a de facto relationship to apply for partner visas, access other governmental services that require proof of their relationship, and to conduct property settlement if a relationship breakdown occurs. 

Note that there are certain eligibility requirements for registering a relationship. This includes one partner living in NSW, both individuals being over the age of 18, and not being in a registered relationship with anyone else but your de facto partner.

What happens when a de facto relationship breaks down? 

An important thing for you to consider if your de facto relationship breaks down is how you and your partner’s property is to be split. This process is known as a property settlement. 

It is important to note that there are time limits for initiating a property settlement. Individuals separating from their de facto partners will need to make a claim for property settlement within two years of their separation date. Ordinarily this means lodging an application for a court order to divide the property fairly between the two separating partners. 

For the Federal Circuit and Family Court of Australia to determine a financial dispute arising from a de facto relationship breakdown you may have to prove additional criteria such as one of the following: 

  • That the de facto relationship lasted for at least two years
  • That there is a child in the de facto relationship
  • That the de facto relationship is registered. 

Before making an application to a court, you should strongly consider obtaining legal advice to ensure that you fulfill all the requirements needed. 

What happens if my partner is trying to dispute the fact that a de facto relationship existed? 

There are cases where separated parties dispute different elements of a de facto relationship, including the length of the relationship or even its existence. This may be for property settlement reasons. If you find yourself in this position, it is strongly recommended that you seek legal advice to ensure that you are able to sufficiently prove that your relationship did exist. 

If you need any assistance with proving your de facto relationship, please feel free to reach us via the contact form.

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