What is a de facto relationship in Australia?

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04/07/2023

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In Australia, a ‘de facto relationship’ as it is referred to legally, occurs when two people live together as a couple but are not married. De facto couples may be opposite-sex or same-sex couples.

There is more to being in a de facto relationship than living with a person and being in a sexual relationship with them. Under the Family Law Act 1975, a person is deemed to be in a de facto relationship if:

  • they are not legally married to the person they are living with;
  • they are not related by family to the person they are living with; and
  • it would be considered that they are living together with someone on a ‘genuine domestic basis’.

What does ‘genuine domestic basis’ mean?

There is not one definition which covers ‘genuine domestic basis’, however a court may use the following factors to determine if the parties are living under these circumstances:

  • how long the couple has resided together;
  • whether the relationship is of an intimate nature;
  • whether one party is financially dependent on the other and/or how each party contributes financially to the relationship;
  • whether the couple has any joint assets;
  • whether the couple shares any children together and how they are supported;
  • how committed the couple is to a shared life; and
  • the perception others have of the relationship, for example, would the couple’s friends and family view them to be a in a relationship or just housemates?

Does a de facto relationship need to be registered?

By registering a de facto relationship, it becomes legally recognised. Once legally recognised, it does become easier to make plans with a de facto partner, particularly around estate planning and finances.

In order to register the relationship, the following criteria must be met:

  • both parties to the relationship are over the age of 18;
  • neither of the parties is already in a relationship, including a registered de facto relationship or marriage; and
  • the parties are not related.

What is the difference between a de facto relationship and marriage?

The biggest difference between a de facto relationship and marriage is that a de facto couple need not need take any legal steps to commence that relationship, whereas a marriage only begins after the couple is married in accordance with the requirements of the Marriage Act.

If the relationship ends, married couples must file for divorce or annulment whereas de facto couples whose relationship is registered will need to have the registration revoked

Can I protect my assets against my de facto partner if we split up?

A cohabitation agreement is a type of Binding Financial Agreement which you may wish to enter into if you cohabitate with a partner. It sets out what will happen to your and your partner’s assets and debts should you separate. This document is legally binding if prepared in line with the Family Law Act 1975 but both parties will need to seek independent legal advice before entering into the agreement.

Can my de facto partner take half of my assets if we split?

An ex de facto may be entitled to some of their former partner’s assets in the case of a separation. The Family Court may make orders if they find that a de facto relationship existed and:

  • the de-facto relationship lasted for at least two years;
  • the relationship was sexual in nature;
  • the couple had children;
  • the relationship was registered; or
  • one party made significant contributions to the other’s assets (such as making mortgage repayments or funding renovations which increased the value of the property) and failing to compensate the party for their contribution would be unjust.

Property settlements must be finalised within two years following the date of the separation.

Do I need to pay my former partner maintenance?

If a person cannot support themselves after the breakdown of their relationship they may be able to apply for spousal maintenance. A court will consider the individual factors of the matter, including assessing each party to the couple’s current income, their ability to work and future earnings and whether the relationship has affected one party’s ability to earn (for example, one party removed themselves from the workforce to look after the home/family). If one party is not reasonably able to pay maintenance to their former spouse then it is unlikely they will be ordered to do so.

If you need advice about de facto relationships or separation, speak to a family lawyer at Cairns Divorce Lawyers.

At Cairns Divorce Lawyers you will always speak to a Lawyer