Table of Contents
- Table of Contents
- What is a de facto relationship?
- Who is a de facto partner?
- What does genuine domestic basis mean?
- How does Australian law apply to de facto relationships?
- Children
- Property division
- Migration law
- What are the rights of de facto partners in Australia?
- What is a registered relationship?
- Do I need to register my de facto relationship?
- What else should I know about de facto relationships in Australia?
- Superannuation
- No will
- Deceased estate claim
- Understanding De facto Relationship Property Rights
- When do de facto relationship entitlements arise?
- What is a short-term de facto relationship?
- If my de facto relationship breaks down, what are my entitlements?
- Does having children together make any difference to my de facto break-up entitlements?
- What is the best way to protect my assets in a de facto relationship?
- How can a family lawyer help me?
What is a de facto relationship?
A de facto relationship is a domestic relationship in which two people, who aren’t married to one another, live together as a couple. Living together on a genuine domestic basis is how the law describes this type of arrangement.
Who is a de facto partner?
De facto relationships include relationships between opposite-sex or same-sex partners. Sometimes, a person who is still legally married to a third party can be considered a de facto partner. Usually, however, this situation would only arise after that person is separated from the husband or wife.
What does genuine domestic basis mean?
The key feature of a de facto relationship is that the couple must live together on a genuine domestic basis. There’s no one-size-fits-all definition of this legal term. If your de facto status is ever in dispute, a court will look at the circumstances of the relationship including:
- How long you lived together
- Whether you shared finances, or whether one partner was financially dependent on the other
- Whether you share children and caring arrangements
- Whether you committed to a life together
- Whether you were sexually intimate
- How other people perceived your relationship (for example whether others believed you to be a couple or simply housemates)
There may be obvious signs, or a court may need to balance all the features of the relationship to reach a conclusion.
How does Australian law apply to de facto relationships?
Even if you have lived as a de facto couple on a genuine domestic basis, it doesn’t mean that any rights arise under Australian family law. Your relationship must meet specific criteria for those rights to come into play.
Typically, your legal rights as a de facto partner only become an issue when the relationship breaks down. At that point, you may need to work out how to divide property, make childcare arrangements and deal with other matters.
Children
If you and your former partner share a child, there is no minimum time that you must have lived together before your relationship is legally recognised.
Having the child is enough to establish you’ve lived together on a genuine domestic basis.
Property division
You may wish to make a claim on the property of the relationship, or on your ex-partner’s property (regardless of whether the property was acquired before or during the relationship). To do so, you must have either:
- Lived together on a genuine domestic basis for at least two years; or
- Had a child together
A court may also consider other issues such as:
- Whether one of you made a significant contribution to the relationship’s finances or assets
- Grave injustice if one of you is at a significant financial disadvantage (for example if you or your partner gave up work to care for your children)
- Whether the relationship is registered (see below for more information).
Once meeting the criteria, the de facto couple has the same rights as married couples under Australian family law for the division of the couple’s property.
For more information, make sure you read the Understanding De facto Relationship Property Rights section.
Migration law
If you or your partner apply for a migration visa, you must be able to demonstrate you’ve been in a de facto relationship for at least one year. There are some situations where this requirement doesn’t apply. For example, the relationship is registered (see below), there is a child of the relationship, or on other humanitarian grounds.
What are the rights of de facto partners in Australia?
Once your de facto relationship is registered, or once it meets the time requirements, you usually have the same rights as married couples under Australian law. However, sometimes there may be an issue in proving the relationship existed. Married couples get legal documents as proof of their marriage, but it can be more difficult for de facto partners to establish the relationship, especially if one party denies there was a genuine domestic basis to the relationship.
That’s where it can help to register your de facto relationship.
What is a registered relationship?
In New South Wales, you can register your de facto relationship on the NSW Government’s Relationships Register. The point of the Register is to give legal recognition to a de facto relationship. Once registered, the relationship doesn’t need to meet any other time requirements before you gain legal rights over property, to apply for migration visas, superannuation division and more.
Do I need to register my de facto relationship?
Registering your relationship isn’t compulsory, but there may be good reasons to consider doing so, for example:
- You don’t have any children together
- The relationship doesn’t meet the time requirements for legal rights
- You want to make plans for your superannuation, make a will, or make other plans for your de facto partner
You can apply to register your de facto relationship so long as:
- One or both of you live in NSW
- You’re both over 18 years old
- Neither of you is married or related
- Neither of you is in another registered relationship
- As a couple, you’re not in a relationship with another person
If the registration is due to fraud, or because one or both parties was forced to register, it will be invalid. Both parties must be mentally capable of understanding they’re entering into a registration.
What else should I know about de facto relationships in Australia?
Other legal issues may arise due to your de facto relationship, for example:
Superannuation
A superannuation fund can exercise discretion whether to pay entitlements to a de facto partner. If your de facto partner makes a binding death nomination in your favour and if your relationship is registered, you’ll be in a better position to have the discretion exercised in your favour.
No will
If your partner dies intestate (without a will), and you wish to claim their property and assets, you will need to prove you’ve had a de facto relationship for at least two years. This time requirement doesn’t apply if you’ve had a child together or if your relationship is registered.
Deceased estate claim
If your de facto partner, or former de facto partner, died and you believe they should have provided for you under their will, you can make a claim on their estate. A court will consider many issues, including your ability to support yourself. Being able to prove the relationship (for example, showing proof of registration) is a significant part of this process.
Understanding De facto Relationship Property Rights
When do de facto relationship entitlements arise?
If your relationship has ended, you may have de facto relationship entitlements to your partner’s property, as well as the property of the relationship. They are sometimes known as de facto break-up entitlements.
You can make a property claim under the Australian Family Law Act when:
- The de facto relationship is registered
- You and your former partner lived together on a genuine domestic basis for at least two years before separating
- You and your former partner share a child or children
- You and your former partner have reached a property settlement agreement and have asked the Family Court to make consent orders based on the agreement
Property can include:
- Bank accounts
- Real estate
- Shares and other investments
- Business assets
- Personal property, including cars
- Debts
- Superannuation
What is a short-term de facto relationship?
A short-term de facto relationship is one in which the couple has lived together for less than two years, they don’t share children, and the relationship isn’t registered.
The period that a couple has lived together is one of the most important considerations when working out de facto relationship entitlements. The Family Court will place as much importance on duration as it does on whether the couple has lived together on a genuine domestic basis.
If you don’t share children with your former partner and the relationship isn’t registered, the Family Court has no power to make property orders or to hear your property claim if the relationship is short-term.
However, the Court may decide to hear a claim if you or your partner made significant financial or non-financial contributions to the relationship, and there would be a grave injustice if either of you were prevented from making a property claim.
Issues surrounding short-term de facto relationships are often complicated, especially if there’s a dispute about contributions. You’ll need expert legal advice as soon as possible if you’re in this position. Contact us today to find out more about your de facto relationship entitlements.
If my de facto relationship breaks down, what are my entitlements?
Your de facto relationship property entitlements depend on your circumstances. It’s unlikely your entitlements will be the same as anyone else’s, simply because every situation is unique.
There are, however, some basic rules and guidelines under Australian family law for working out the property entitlements for former de facto partners.
The most important consideration is the time limit. You have two years from the date of separation to make a property claim in the Family Court. Usually, a claim is only made after attempts to reach an agreement have failed, so this two-year time limit is typically used by the parties to try and negotiate an agreement.
If you make a claim, the Family Court will work out how to divide the property (otherwise known as property entitlements) by:
- Identifying and valuing all the property (including any property held by either of you before you started living together, and any property acquired after separation)
- Assessing the financial and non-financial contributions of both you and your former partner
- Considering any future needs either of you may have
- Deciding whether the proposed division is fair to both parties
Does having children together make any difference to my de facto break-up entitlements?
If you have children with your former partner, you don’t need to meet the minimum two year time requirement for having lived together. Once there’s a child, the time limit doesn’t apply.
Having children may affect your break up entitlements in many ways. For example:
- You may be entitled to child support for dependent children, or you may be required to pay child support.
- If you or your partner has given up work, or reduced work hours, to care for children, one of you may need spousal maintenance for additional financial support.
- If you made a significant financial or non-financial contribution to the relationship (for example, giving up work to care for children), this might be recognised, by a property division in your favour
If you have questions about how children may affect your de facto entitlements, we can help. Contact us for more information about your de facto entitlements.
What is the best way to protect my assets in a de facto relationship?
If you wish to protect your assets, one of the first steps is to have a detailed understanding of what you own before you start living together. It’s handy to keep a list, as well as any valuations.
As your de facto relationship approaches the two-year mark, you need to be aware your partner will have rights to your property, including any property owned by you before the relationship commenced. If you’re concerned about the stability of your relationship, you should seek our legal advice.
If you have a child together or if you register the relationship, you need to be aware your de facto partner already has property rights.
You may choose to protect your pre-relationship assets with a property settlement agreement. This type of agreement is similar to a pre-nuptial agreement, which is entered into before marriage. Property settlement agreements can also be entered into during the de facto relationship.
These agreements can become court orders if the parties consent. The advantage of having court orders is if something goes wrong, the Family Court can enforce them. For more information about property settlement agreements, see our page on Property Consent Orders.
How can a family lawyer help me?
We’re experts in all aspects of de facto relationship entitlements. We’ll help you sort out your property and assets and to decide whether to make a claim. We’ll give you advice tailored for your specific needs, focussed on minimising stress.
