The definition of a de facto relationship in a Family Law context is the same throughout Australia: it is a relationship in which a couple lives together on a genuine domestic basis.

Rights regarding property settlement on separation for de facto relationships are governed by the Family Law Act 1975 (the Act) (except in Western Australia, where they are dealt with by the Family Law Act 1997 (WA)).

Same sex and opposite sex couples are included in the definition of de facto relationship. If a person is legally married they can also be in a de facto relationship with another person they are not married to.

The period of time before a relationship is considered de facto is generally two years. However, there are exceptions to this rule if there are children or one partner has made substantial contributions to joint property.

Meaning of de facto relationship

There is no “checklist” determining whether a couple was in a de facto relationship. Each case is examined individually and the specific circumstances of the relationship taken into consideration.

There is a lot of confusion about the definition of a de facto relationship, because of the circumstantial nature of the definition under the Act and because different definitions are used for different purposes – for example, for Centrelink purposes, a couple is considered to be in a de facto relationship from the moment they start living together, while under migration law, parties must be able to show that they have been living together for a period of 12 months or longer.

Under the Act, the rules are not so straightforward and there is an added degree of complexity when determining whether two people have been in a de facto relationship as the Court instead evaluates the following factors:-

• the degree of financial dependence between the parties;
• the degree of a mutual commitment to a shared life;
• whether the partners are married;
• ownership, use and acquisition of the parties’ property;
• whether a sexual relationship existed;
• whether there are any children of the relationship;
• the length of the relationship relationship (i.e. whether the parties have lived together for a period of 2 years or longer);
• the extent and nature of shared residence;
• whether the relationship is registered in an Australian state or territory;
• the degree of mutual commitment toward a shared life; and/or
• public aspects of the relationship, such as reputation.

The Courts have made it clear, however, that is it not a prerequisite for all of the above factors to be present nor will one factor necessarily be given more weight than another.

The legislation and the Courts have acknowledged that a de facto relationship can exist even if one of the persons in the de facto relationship is legally married to someone else or in another de facto relationship with another person.

Registering a de facto relationship

In New South Wales you may register a de facto relationship through the Registry of Births, Deaths and Marriages (BDM). BDM gives you a certificate which you can use as proof of the de facto relationship and how long you have been together. It may also create rights for property division, even if you have not lived together for two years.

Breakdown of a de facto relationship

Most de facto relationships end amicably. If, however, on the breakdown of a de facto relationship the parties disagree about the division of property, there are three ways to resolve the disagreement:

1. By agreement without Court involvement;
2. By applying for the Court to make Consent Orders; or
3. By initiating Court proceedings.

To make a claim post separation under de facto status, applicants have a two-year period from date of the relationship breakdown in which to initiate Court proceedings

The courts can make orders dividing any property that you own together or separately. They can also order a split of any superannuation, or for one party to pay the other spousal maintenance.

The net asset pool includes anything acquired before, during, or after separation. It does not matter whether the property was owned jointly or individually. When determining a property settlement, the Court evaluates the types of contributions (financial and non-financial) each person made, as well as their future needs.

While married couples simply need to show their marriage certificate to prove the existence or the length of their marriage, de facto couples are often faced with the challenge of proving these things if the other party disputes it.

If there is any dispute about the existence of or the length of the de facto relationship, contact us to ensure that you:

1. meet the relationship criteria prior to making your application; and
2. are able to provide enough evidence (if necessary) of your relationship for the Courts to make a declaration that a de facto relationship existed – otherwise, cost consequences may follow.