De facto Relationships
Trusted Sydney family lawyers
What is a de facto relationship in Australia?
The legal definition
The Family Law Act 1975 defines a de facto relationship as a relationship between two people who:
- are not legally married and not related by family, and
- are living together on a genuine domestic basis (having regard to all the circumstances of the relationship).
This definition applies in all states and territories of Australia, except for Western Australia. De facto relationships in Western Australia are governed by state-based legislation.
Who can be in a de facto relationship?
Any person in a relationship with another person can be in a de facto relationship if they have lived together for two years or more without separation.
A person who’s lived with another person for less than two years could also be in a de facto relationship if an exception applies. Exceptions include circumstances where:
- the couple have had a child or children together;
- there have been substantial contributions made to the purchase of joint property (and a failure of the Court to consider this contribution would cause a serious injustice to one or both parties); or
- where the relationship has been registered with the state government.
Both same-sex and heterosexual couples can be in a de facto relationship.
A person can be in a de facto relationship even if they (or their partner) are legally married to another person or in another de facto relationship at the same time.
How are de facto relationships determined by the Court?
The Court considers several factors when determining whether two people are, or were, in a de facto relationship. These include:
- whether they were married;
- how long they were together;
- whether they have lived together and for how long;
- whether they have, or had, a sexual relationship;
- whether there are any children of the relationship;
- the circumstances surrounding the care and support of those children of the relationship, if any;
- the nature and extent of their common residence;
- financial dependency (for example, any arrangements for financial support between the parties);
- the degree of mutual commitment to a shared life;
- whether they are, or were, in a registered relationship under the law of a State or Territory;
- the ownership, use and purchase of any property, including the house they lived in;
- the reputation and public aspects of the relationship.
Although the Court may consider the above factors, it is not a requirement for any one or all of the factors to be present for a de facto relationship to exist.
If the Court determines that a de facto relationship exists or existed, the parties can then apply to the Court for property settlement, parenting matters and maintenance matters, which include both child support and spouse maintenance.
What happens when a de facto relationship breaks down?
When your de facto relationship breaks down, you can resolve your property settlement matters, spousal maintenance or parenting matters by:
- entering into a non-binding private agreement, without any Court involvement;
- entering into a private agreement and by way of a Binding Financial Agreement, without any Court involvement;
- making an application for Consent Orders to be made by a Registrar of the Federal Circuit and Family Court of Australia;
- applying to the Court to commence proceedings for Orders to be made by a Court (if genuine steps have been taken to resolve the matter and despite this no agreement has been reached).
Important time limitations for de facto relationships
If you are considered to be in a de facto relationship, the following time limitations apply:
Property settlement
You must file an application in the Court within two years of the date your de facto relationship ended. You can seek leave to make an application out of time under certain circumstances.
Spousal maintenance
You must file an application in the Court within two years of the date your de facto relationship ended. You can seek leave to make an application out of time under certain circumstances.
Parenting matters
There is no time limitation to bring an application for parenting matters.
If final Orders have previously been made, regardless of whether the orders were made with the consent of the parties or by a Judge of the Court following a trial, the only way to commence proceedings is if there has been a significant change in circumstances since the final Orders were made.
Commencing proceedings: How to make a Court application
Prior to making an application to the Court, we recommend you:
- seek independent legal advice from a Family Law practitioner, and particularly if you have any doubts or concerns about whether your relationship would qualify as de facto, including issues related to the length of the relationship; and
- make sure you have substantial evidence of the relationship, if necessary, and to the Court to make a declaration that a de facto relationship existed.
If a Court makes a finding that a de facto relationship did not exist, a Costs Order may be made against you.
Regardless of whether you were a party to a de facto relationship or a spouse in a marriage, the same Court forms are required to commence proceedings. These forms do however differ depending on the type of Orders you are seeking.
If your application is in respect of property orders only, or seeking a property settlement the following forms need to be completed, or obtained and thereafter filed:
- An Initiating Application Form (for Final and/or Interim Orders);
- A Genuine Steps Certificate, confirming the applicant’s compliance with the pre-action procedures listed in Schedule 1 of the Family Law Rules;
- a Financial Statement;
- a Financial Questionnaire;
- a copy of any family violence order affecting the party in accordance with rule 2.10 of the Family Law Rules;
- an Undertaking as to Disclosure in accordance with rule 6.02 of the Family Law Rules;
- An Affidavit in support of your application, but only if the:
- applicant is aware that the Financial Statement will not fully discharge the duty to make full and frank disclosure, an affidavit providing further particulars.
- application seeks interlocutory orders;
- application seeks a search order; or
- application seeks a freezing order.
If your application is in respect of parenting matters only then you will be required to complete or obtain and thereafter file with the Court the following forms:
- an Initiating Application Form (for Final and/or Interim Orders);
- a certificate given to the applicant by a family dispute resolution practitioner under section 60I(8) of the Family Law Act;
- a Genuine Steps Certificate, confirming the applicant’s compliance with the pre-action procedures listed in Schedule 1 of the Family Law Rules;
- a Notice of Child Abuse, Family Violence or Risk;
- a Parenting Questionnaire;
- an Undertaking as to Disclosure in accordance with rule 6.02 of the Family Law Rules;
- a copy of any family violence order affecting the child or a member of the child’s family in accordance with rule 2.10 of the Family Law Rules; and
- an Affidavit in support of your application, but only where:
- A party submits that an exemption applies under section 60I(9) of the Family Law Act and in respect of obtaining a s 60I certificate;
- The application seeks interlocutory or interim orders.
In circumstances where the Orders you seek are in respect of both parenting and property then you will need to complete and file all of the above forms.
You’ll also need to pay a filing fee.
The Court usually releases a new fee schedule at the beginning of every financial year.
You may wish to consider the nature of the Orders you are seeking as the fees vary.
For example, there are different fees associated with applications that are for Parenting or Financial Matters, and Applications that are for parenting and financial matters. Additionally, whether the Orders you are seeking are only on a final basis, or only on Interim Orders whether your matter requires both interim and Final Orders will also effect the fees you are required to pay at the time of filing.
How our Sydney family lawyers can help with your de facto relationship
Our family lawyers have extensive experience dealing with property and parenting matters, and other legal disputes arising from de facto relationships and their breakdown.
Frequently asked questions on de facto relationships
You can re-partner or remarry at any time. There is no legislative time limit for a party to a de facto relationship to re-partner or remarry.
The only time limitation you need to be aware of is the two-year period from the date of separation to commence property settlement or spouse maintenance applications.
Before the Court can determine your financial dispute, you must satisfy the Court of all of the following:
- you were in a genuine de facto relationship with your former partner and that relationship has broken down;
- you meet one of the following four gateway requirements:
- The length of the de facto relationship is at least 2 years
- There is a child in the de facto relationship
- The relationship is or was registered under a prescribed law of a State or Territory
- When assessing property or custodial claims in cases of a breakdown of a relationship, it is recognised that significant contributions were made by one party and the failure to issue an Order would result in a serious injustice;
- you have a geographical connection to a participating jurisdiction; and
- your relationship broke down after 1 March 2009 (or after 1 July 2010 if you have a geographical connection to South Australia only) – although there are exceptions.
If you contact the Registry of Births, Deaths and Marriages in your state or territory, you can register your relationship. They will issue you a certificate as proof of your de facto relationship.
A person who was a de facto partner as at the date of death of the deceased person is an eligible person for the purposes of the Succession Act 2006.
This enables the de facto partner to bring a claim in the first instance, though eligibility does not mean that a claim will be successful.
The definition of a de facto partner for this purpose is contained in the Property (Relationships) Act 1984. It says a de facto relationship is a relationship between two adult persons who:
- live together as a couple, and
- are not married to one another or related by family.
The Act also provides guidance for determining whether the two persons are in a de facto relationship. All of the circumstances of the relationship are taken into account, including the following where relevant:
- the duration of the relationship
- the nature and extent of common residence
- whether or not a sexual relationship exists
- the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties
- the ownership, use and acquisition of property
- the degree of mutual commitment to a shared life
- the care and support of children
- the performance of household duties
- the reputation and public aspects of the relationship.
It can be seen that, provided they are not related, the only question is whether two adult persons are living together as a couple.
Keep in mind that “living together as a couple” does not mean “living together in the same house” – and the nature and extent of common property is just one factor to be considered.
In circumstances where a person dies without leaving a Will, the duration of the relationship is particularly important. A de facto partner assumes special status as a ‘Domestic Partnership’ if the relationship exists for a continuous period of two years as at the date of death.
So, if you are in a relationship and your de facto partner dies, you have the same rights as a married person. This includes rights and entitlements, including a share of an estate where no Will exists (that is, when your partner has died ‘intestate’).
Once the Court is satisfied that the person challenging a Will or estate was a de facto partner, the Court can proceed with determining whether the provision made in the Will was inadequate. If so, the Court will determine whether an Order should be made to disturb the terms of the Will.
In making these decisions, the Court has regard to a range of matters including:
- any family relationship, including the nature and duration of the relationship
- the nature and value of the estate
- the financial resources and needs of all interested parties
- any physical, intellectual or mental disability of any interested parties
- the de facto partner’s age
- any contribution made to the estate or welfare of the deceased
- any provision made for the de facto by the deceased before or after death
- whether the de facto was being maintained, either wholly or partly, by the deceased person before the deceased person’s death
- whether any other person is liable to support the de facto
It’s important to note that unless family law proceedings were issued before the deceased passed away, you are unable to issue them after they die.
Yes – same sex couples are afforded the same recognition as heterosexual couples and will be required to satisfy the same legal thresholds.
