Family Law Blog

Am I in a De Facto Relationship?

Posted by Malcolm Gittoes-Caesar on 22 May 2015

In today’s society, it’s common for many couples to live together without tying the knot so how do you define these relationships in a legal sense?

You are considered to be in a de facto relationship with someone if three criteria set out by the Family Law Act 1975 (Cth) are satisfied: 

  1. the persons are not legally married to each other; and
  2. the persons are not related by family; and 
  3. having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Establishing the first two criteria is straightforward but the third criteria has a layer of complexity - fortunately, the Family Law Act provides a detailed, non-exhaustive list of circumstances to simplify the process. These include, but are not limited to:

(a) the duration of the relationship; 
(b) the nature and extent of their common residence; 
(c) whether a sexual relationship exists; 
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them; 
(e) the ownership, use and acquisition of their property; 
(f) the degree of mutual commitment to a shared life; 
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship; 
(h) the care and support of children; and
(i) the reputation and public aspects of the relationship.

The finding of any of the above is not strictly conclusive of a de facto relationship as your entire relationship is considered, including any other matters the court deems appropriate in individual cases.

In addition, you need to demonstrate you have had a relationship for at least two years – except where a child or children of the relationship are involved.

The Family Law Court and the Family Circuit Court handle your financial and spousal matters as well issues involving children in the same way as for married couples. De facto partners are also entitled to the same rights in regards to spousal maintenance, property settlements, intestacy and superannuation and compensation being claimed after the death of a partner.

If you’re in a de facto relationship an application for maintenance or property adjustment must be made within two years of separation. This may be extended if the court is satisfied that:

  • hardship would be caused to either of the parties or a child if leave is not granted 
  • in respect to an order for maintenance, the parties circumstances were such, at the time, that they would have been unable to support themselves without some pension, allowance or benefit.

For more information on de facto relationships and the law, please contact our Family Law Accredited Specialist: