De facto relationships have been dealt with under the Family Law Act since all states and territories (except Western Australia) passed to the Commonwealth Government their powers dealing with property division between de facto partners. The legislative changes also allowed same-sex relationships to be dealt with in the same way as heterosexual relationships.

The legal definition of a “de facto” relationship

The Act provides that you and another person are in a de facto relationship if you are not legally married to each other, you are not related by family, and you have a relationship as a couple living together on a genuine domestic basis.

In assessing whether you are in a de facto relationship, the court may consider:

• the nature and extent of common residence;
• the duration of the relationship;
• the degree of financial dependence or interdependence and arrangements for financial support;
• whether a sexual relationship exists;
• the decree of mutual commitment to a shared life;
• the ownership, use and acquisition of their property;
• whether the relationship is or was registered under a prescribed law of a State/Territory;
• the reputation and public aspects of the relationship; and
• the care and support of children.

The Family Law Act recognises that a party could be in multiple de facto relationships, or that a person who is married could be a party to de facto property proceedings.

Usually, you will need to demonstrate that you have lived together for at least two years. This is overlooked if there is a child of the relationship, or in other exceptional circumstances.

De facto status automatically applies when two people meet the criteria.

Other jurisdictional requirements for de facto couples

In addition to meeting the definition of a de facto relationship, a party who makes an application to the court must also satisfy one of the jurisdictional requirements set out in section 90SB of the Act:

• that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
• that there is a child of the de facto relationship; or:-
• that the party who applies for the order or declaration made substantial contributions of a kind set out in sections 90SM(4)(a), (b) or (c); and
• failure to make the order or declaration would result in serious injustice to the applicant; or
• that the relationship is or was registered under a prescribed law of a state or territory.

Geographical Issues

Prior to the making of maintenance orders (pursuant to section 90SD of the Act) or property adjustment orders (pursuant to section 90SK of the Act) the court must be satisfied that the at least one of the parties complied with the geographical requirements set out in the above sections.

Are there time limits on de facto applications?

An application for property adjustment or maintenance must be made within two years of separation (section 44(5) of the Act).A party may seek leave to make an application after this time if the court is satisfied under section 44(6) of the Act that either:

1. hardship would be caused to the party or a child if leave were not granted; or
2. in the case of an application for an order for the maintenance of the party – the party’s circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.

Should we register our de facto relationship?

By registering a de facto relationship, the document or “certificate” can be used as proof of the existence and duration of the relationship.

Registration may cause rights and obligations that are similar to marriage.

These rights and obligations may be created even though the parties have not lived together for a period of two years (section 90SB(d) of the Act).

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