Relationships come in all shapes and sizes. Whilst you may think about your relationship in one way, it's important to remember that relationships, and the types of relationships 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 a '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.
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, largely due to the varying definitions applied in different 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.
When it comes to 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
As married couples simply need to provide a marriage certificate to prove the existence and/or duration of their relationship, de facto couples often face challenges proving these things in circumstances where the other party disputes it.
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 asset division.
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 there are strict time limits that apply to make 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, help provide structure post-separation.
Registering A De Facto Relationship In Queensland
While a de facto relationship automatically grants legal rights over time, registering the relationship with the Registry of Births, Deaths and Marriages offers additional certainty. This can help in property and financial disputes and ensure legal recognition in case of separation or death.
Legal Advice for De Facto Relationships
If you're thinking about entering into a new relationship, or a currently in a de facto relationship, it's important to understand your rights and obligations under the law should anything happen.
If you need assistance with property settlements, financial agreements, or parenting matters, RHC Solicitors provides guidance and support driven by decades of experience. We also offer a free no-obligation 30-minute consultation for new family law matters, so you can discover how we can help protect what's most important to you.
Need legal advice? Contact RHC Solicitors today to discuss your situation.
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 is that of the author and may not necessarily represent the views and/or opinions of RHC Solicitors.
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