Is my relationship still de facto if we live apart?

Even though you do not live together with your partner, you may still be considered to be in a de facto relationship by law. You do not have to be living together on a full time basis to be considered to be in a de facto relationship. 

Courts will generally consider a variety of different factors in determining whether an individual is in a de facto relationship and this will include considerations that do not involve living arrangements. 

The factors that the court will consider 

Whether a couple is living together is only one factor that the court considers when determining whether someone is in a de facto relationship. The other factors that the court considers include: 

• The duration of the relationship 
• 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 and reputational aspects of the relationship;
• The ownership, acquisition and use of property in the relationship.

There is not one factor in this above list that is more heavily considered by the court than others. The court generally should consider all the circumstances of the relationship and hence all these factors will be considered in context. 

It is notable that a recent court case has shown that even if a couple has short periods where they are living separately and are having sexual relationships with other people outside their relationship, this does not bar a finding that the couple is in a de facto relationship. 

Issues regarding property settlement and spousal maintenance

If an individual is in a de facto relationship that has recently broken down, they will have a two year time limit from the date the relationship ended to make a property claim or apply for spousal maintenance against their former partner. 

It is also important to note that for a property settlement to be brought before the court in matters involving a de facto relationship, an individual will have to be able to prove that the de facto relationship was ongoing for two or more years. The same is required for agreements regarding spousal maintenance. This is a requirement for any individual who has separated from their former de facto partner after 1 March 2009. 

However, note that there are some exceptions to this rule. Someone will not have to prove the de facto relationship lasted for a minimum of two years if one of the requirements below is fulfilled: 

• The de facto couple had a child together;
• One party has made significant contributions to the relationship (whether financial or non-financial); 
• The couple has registered their relationship under the relevant state or territory authority under law. 

Registering a de facto relationship 

In NSW, a de facto couple can register their relationship online with the NSW Relationship Register via Services NSW. Once the relationship has been successfully registered, the law will recognise that a de facto relationship exists and it cannot be disputed. 

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