Updated: 21 hours ago
Relationships come in all shapes and sizes. While you may think of your relationship one way, remember that relationships, and the types that can exist under the law, are clearly defined. They carry certain rights and responsibilities you should consider as you move through life.
In this article, we're taking a look at 'de facto' relationships. De facto couples have many of the same rights as married couples, particularly in areas like property settlement, spousal maintenance, and parenting arrangements.
In This Article:
What Is A De Facto Relationship?
Under the Family Law Act 1975, a de facto relationship is when two people live together in a genuine domestic arrangement without being married, which can include financial and emotional interdependence.
This applies to both opposite-sex and same-sex couples.
How Is A De Facto Relationship Recognised?
Understanding what constitutes a de facto relationship can be confusing because definitions vary across legal contexts. While section 4AA(2) of the Family Law Act 1975 provides a legal framework, different government agencies use their own criteria.
For example, Centrelink considers a couple to be in a de facto relationship from the moment they start living together. However, under Australian migration law, partners must demonstrate at least 12 months of cohabitation to be recognised as de facto.
In family law matters, determining whether a couple qualifies as de facto is more complex. The Federal Circuit and Family Court of Australia assess multiple factors rather than applying a simple timeframe.
These considerations may include:
the duration of the relationship (typically at least two years of cohabitation)
whether a sexual relationship exists
the presence of children from the relationship
the extent of shared living arrangements
the degree of financial dependence or interdependence (e.g. joint bank accounts, utility bills, shared expenses)
the level of mutual commitment to a shared life
the public perception and reputation of the relationship
ownership, use, and acquisition of property
Because married couples only need to provide a marriage certificate to prove the existence and/or duration of their relationship, de facto couples often struggle to prove these things when the other party disputes them.
Since no single factor is decisive, the Court takes a broader approach in assessing whether a de facto relationship exists. The Court makes clear that not all of the conditions above must be met, and in some circumstances only a handful have been used to determine the nature of a relationship between two individuals.
Key Legal Rights Of De Facto Couples
Property Settlement
If a de facto couple separates, the Court considers financial and non-financial contributions, as well as future financial needs. To avoid disputes, couples should consider entering into a binding financial agreement to clarify how assets will be divided.
Spousal Maintenance
A de facto partner may be entitled to spousal maintenance if they cannot support themselves financially post-separation. The Court considers factors like income, health, and childcare responsibilities.
Note that strict time limits apply to any application; de facto couples have two years from the date of separation to apply for property settlements or spousal maintenance.
Child Custody and Support
Parenting arrangements for children of de facto couples follow the same rules as married couples.
Custody decisions focus on the child’s best interests, and both parents must contribute financially to their upbringing. Legal agreements, such as parenting plans or consent orders, provide structure after separation.
Registering A De Facto Relationship In Queensland
While a de facto relationship automatically grants legal rights over time, registering it with the Registry of Births, Deaths and Marriages provides additional certainty. This can help with property and financial disputes and ensure legal recognition if the relationship ends or ends in death.
If you're considering a new relationship, or are already in a de facto relationship, it's important to understand your rights and obligations under the law if anything happens.
Disclaimer: This publication is not intended to be comprehensive, nor does it constitute legal advice. We are unable to ensure the information is current, and there is no guarantee in relation to accuracy. You should seek legal or other professional advice before acting or relying on any of the content of this publication. The views and/or opinions expressed in this publication are those of the author and may not necessarily represent the views and/or opinions of RHC Solicitors.
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