“I want to move in with my partner – does this mean we will be in a de-facto relationship?”

This is one of the most common questions we get asked as family lawyers — and it’s easy to understand why. If you’re facing a new relationship, want to start living with your partner or in a committed partnership, understanding your rights and obligations under the law can help you make informed decisions and protect your future.  

Under the Family Law Act 1975 (“the Act”) de facto couples have the same legal rights as married couples, particularly when it comes to property settlement and spousal maintenance. Many people do not realise they may already be in a de facto relationship with these attached rights and responsibilities.

But what exactly is a de facto relationship, and how do we prove the existence of one? 

Under Section 4AA of the Act, a person is in a de facto relationship if they are not legally married to each other, they are not related by family, and “having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis”.  

The definition of a de facto relationship in the Act is purposefully broad to reflect the diversity of different relationships and has no singular factor or criteria that determines what a de-facto relationship looks like. If there is uncertainty or disagreement about the existence of a de-facto relationship, the Court considers a range of circumstances holistically. These factors include: 

1. The duration of the relationship;
2. The nature and extent of the couple’s common residence; 
3. The existence of a sexual relationship; 
4. The degree of financial independence or independence (i.e., shared bank accounts, joint bills); 
5. Ownership, use and acquisition of property;  
6. The reputation and public aspects of the relationship (i.e., how the couple are viewed socially); 
7. Care and support of children (if any); and  
8. A mutual commitment to shared life. 

 What happens if a de-facto relationship breaks down? 

If a de-facto relationship has ended, both parties may be entitled to apply to the Federal Circuit and Family Court of Australia for property settlement and/or spousal maintenance orders.  

To qualify, at least one of the following criteria must first be met: 

1. The relationship lasted for at least two (2) years; 
2. There is a child of the de facto relationship; or
3. At least one partner made significant contributions (financial or non-financial) and failure to make an order would result in serious injustice.  

 Any applications to the Court for de facto financial orders must be made within two (2) years of the date of the breakdown of the relationship. After this time, the Court’s permission will be required.  

Ultimately, couples in de-facto relationships have similar rights and obligations for financial settlements to those as married couples.  

Need clarity on your relationship status or legal advice about separation? 

If you’re unsure whether your relationship qualifies as a de facto relationship, or you’re navigating the complexities of separation, our experienced family lawyer Christiana Michaels is here to help. 

Call Christiana directly on (08) 8205 1283 

Email: cmichaels@tgb.com.au