A de facto relationship is a relationship where two partners who are not married live together on a genuine domestic basis. De facto relationships in most of Australia are governed by the Family Law Act 1975 but those in Western Australia are governed by the Family Law Act 1997. This page deals with de facto relationships in Australia.
Legislation
The definition of a de facto relationship is contained in section 4AA of the Family Law Act 1975. A person is in a de facto relationship with another person if:
- the persons are not legally married to each other
- the persons are not related by family
- having regard to all the circumstances, the persons have the relationship of a couple living together on a genuine domestic basis
A de facto relationship can exist between persons of the same sex or between persons of different sexes.
In assessing whether a relationship is a de facto relationship, a court may consider the duration of the relationship, the couple’s living arrangements, whether a sexual relationship exists, the care and support of children, the degree of mutual commitment to a share life, the ownership and use of property and other factors.
Separation and de facto relationships
When a de facto couple separates, they may finalise their property arrangements in any of three ways.
- Through a private agreement
- Through an agreement formalised by the court in the form of consent orders (with or without the help of a mediator)
- By either party applying to the court for orders
Seeking family law orders
A person may apply for orders after a de facto relationship if:
- the parties were in a de facto relationship for at least two years; or
- there is a child of the relationship; or
- the relationship is registered under the laws of a state or territory; or
- significant contributions were made by one party, and it would be unjust to make an order.
If a relationship is not a de facto relationship or a marriage, the rights of the parties with respect to property cannot be dealt with under the Family Law Act. If there are financial issues that need to be sorted out after a relationship that is not a de facto relationship, this must be done outside of the family law system.
Five-step process
When the court makes property orders after a separation, it goes through a five-step process to determine the entitlements of the parties based on what each person contributed and the future needs of each person. This process is the same regardless of whether the relationship was a marriage or a de fact relationship.
The five steps are as follows:
- Identify the assets for division
- Assess what would be a just and equitable outcome
- Identify and assess the contributions of each party (both financial and non-financial) to the relationship
- Assess the future needs of each party
- Review whether the proposed division is just and equitable, or whether further adjustments are needed.
Registering a de facto relationship
Every state and territory has a process for registering a de facto relationship through the office of Births, Deaths and Marriages.
A couple that registers their relationship receives a certificate that can be used to prove the existence of a de facto relationship and stating how long they have been together.
A registered relationship may also create rights for property division even where the couple has not lived together for two years.
Death and de facto relationships
If a person is in a de facto relationship and their partner dies, they have the same rights in respect of that partner as a spouse. For instance, the surviving de facto partner is entitled to:
- a share of the deceased partner’s estate if the partner dies intestate
- the right to contest the will if the partner dies leaving a will that does not make adequate provision for them
- compensation under worker’s compensation law if the partner dies during their employment
- social security entitlements.
Jurisdiction
Family law matters involving de facto relationships are dealt with by the Federal Circuit and Family Court of Australia and by the Family Court of Western Australia.
If you require legal advice or representation in any legal matter, please contact Taylor Rose.
