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2023 Guide to De Facto Relationships in Australia: Part One

Published on May 26, 2023

    Profile picture of Kaylee Gale family lawyer in Brisbane

    About the Author

    Kaylee Gale

    Kaylee assists clients in various aspects of Family Law including divorce, property division, parenting matters and domestic violence. While priding herself on her approachable manner, professionalism and genuine client care.

    Kaylee assists clients in various aspects of Family Law including divorce, property division, parent... Read More

    Profile picture of Kaylee Gale family lawyer in Brisbane

    Kaylee Gale

    Author

    Key Takeaways

      • De facto relationships are afforded almost identical rights and responsibilities in Australia as couples who choose to marry.

      • De facto couples can register their relationships in Australia, however, de facto relationships do not need to be registered in order to be legally recognised.

      • Couples in a de facto relationship can face family law matters and challenges such as property settlement and parenting disputes, like married couples.

    The term “de facto relationship” refers to a committed and genuine relationship between two adults that are not legally married.

    In Australia, de facto couples and relationships are legally recognised and granted certain rights and responsibilities to each person.

    De facto relationships are common in Australia, however, while they are common, there are a lot of intricacies and information that are important to know – especially when it comes to matters like property, finances, and parenting.

    To make life a little easier, we’ve put together a very comprehensive two-part guide to de facto relationships in Australia, breaking it down into a few digestible categories to hopefully answer your questions.

    So, if you’re part of a de facto couple and you have questions, keep reading.

    Common Questions About De Facto Relationships in Australia

    We’ve narrowed down the list of questions that we, as family lawyers, are most commonly asked when it comes to de facto relationships and categorised them into the following:

      • Finances and Estates

      • Break Ups

      • Legal

    In this first part, we’ll be answering the general questions and family and parenting-related questions. You can either make your way through our whole guide or jump to the section you want to know more about.

    General De Facto Relationship Questions

    What qualifies as a de facto relationship under Australian law?

    The Family Law Act 1975, which is the governing legislation over family law in Australia, defines a de facto relationship in Section 4AA. A de facto relationship is a domestic relationship between two adults – including both opposite-sex and same-sex couples – who are not legally married.

    This arrangement is also described as living together on a “genuine domestic basis”. There is no clear, one size fits all definition of genuine domestic basis, however, some factors that could influence this include how long you’ve lived together, whether you share finances or if one person is financially reliant on the other, and if you have any children together.

    What qualifies as a de facto relationship in Australia is the same in each state and territory, however, there are differences in the way de facto relationships can be registered in each state, as well as differences in how de facto legal matters like parenting disputes and property matters may be resolved in Western Australia.

    Are same-sex de facto relationships recognised in Australia?

    Yes.

    The Family Law Act 1975 specifically includes that de facto relationships can be between two people of the same sex as per section 4AA:

      “a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex”.

    Changes to Australian Federal laws that were introduced in 2009 regarding the rights of same-sex couples saw the recognition of same-sex de facto relationships.

    Are de facto couples required to register their relationship in order for it to be recognised?

    No, it is not mandatory to register your de facto relationship.

    A de facto relationship can be proven based on a number of factors, such as the following:

    • Your relationship lasted for at least two years;
    • There is a child or children of the relationship;
    • Whether you shared finances, or whether one partner was financially dependent on the other;
    • You have made substantial financial or non-financial contributions to the other person’s property;
    • How long you have lived together;
    • 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)

    While the relationship can be proven, there are advantages to registering the relationship. For example, when a relationship is registered, it can make applying to the court and court proceedings a bit faster as you do not need to prove the relationship, rather you present the certificate.

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    What is the process for registering a de facto relationship in Australia?

    Registering a de facto relationship can be done online and by providing supporting documentation which is usually identification information. It’s important to note that you can register a de facto relationship in every state and territory of Australia except for Western Australia and Northern Territory.

    The below links will take you to the relevant state authorities for relationship registration:

    Before registering a relationship, if you’re unsure on anything or wish to know how this could impact your situation, you can always seek legal advice from a family law expert.

    Do de facto couples have the same legal rights as married couples?

    A couple in a genuine de facto relationship have essentially equal rights and responsibilities as married couples in Australia. This includes claims that relate to family law matters, like property settlements, financial support and parenting arrangements.

    The main difference when it comes to de facto relationships versus marriages in Australia is that you need to prove the existence of the de facto relationship if it is not registered, whereas the marriage is proven by a marriage certificate.

    How long do two people need to live together to be considered in a de facto relationship?

    There is a common belief that a couple needs to live together for a set period of time to be considered in a de facto relationship. This is not necessarily true as a variety of factors can influence the status of a de facto relationship.

    However, it’s important to note that the Family Law Act will not usually apply unless the couple has been living together for at least two years or if there is a child of the relationship.

    So, can a de facto relationship exist if the couple is not living together?

    While we mentioned above that the Act doesn’t usually apply unless the couple has been living together for two years and the definition of a de facto relationship involves the couple living together on a genuine domestic basis, it’s important to understand that it doesn’t necessarily mean living together on a full-time basis.

    Living together on a genuine domestic basis can be applied in a more holistic manner and includes how the couple have merged their lives and if there is a mutual intention to share a life together. Factors such as living together half or less than half of the time, as well as the existence of a sexual relationship, financial dependence and parenting can all play a part.

    A couple that is simply dating causally for a long period of time is unlikely to be recognised as a de facto relationship.

    Can a de facto relationship be legally recognised if one or both partners are still legally married to someone else?

    If you’re in a de facto relationship but you or your partner are still legally married, it’s still possible that you’re in a de facto relationship that will be recognised legally.

    When a married couple ends their relationship, while a divorce is a common outcome, it’s also quite common for people to separate and not formally end their marriage. This could be due to a lot of reasons including just simply not wanting to complete the process.

    This can cause complications if the de facto relationship ends and you wish to make a claim for a property settlement, and we recommend seeking legal advice if you find yourself in this situation.

    If you or your de facto partner are married to someone else and you wish to marry one another, then the married party will need to get divorced, otherwise, the married party could be charged with the offence of bigamy. Learn more about bigamy here.

    Can a de facto partner change their surname to their partner’s surname?

    If you’re in a de facto relationship and you wish to take your partner’s name or they wish to take yours, it is possible.

    An application to the Registry of Births, Deaths and Marriages to change your name needs to be made in your state or territory.

    How does a de facto relationship affect government benefits and entitlements, like Centrelink payments?

    Being in a de facto relationship can have an impact on your eligibility for and/or payment amount if you receive government benefits such as various payments from Centrelink.

    If you do receive these types of payments as part of the registration for the payment type, it is likely that you will need to advise your relationship status. If you’re found to be in a relationship and have not disclosed this information, it could result in you being required to repay the benefits you have received.

    You can learn more about this on the Services Australia website here.

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    Family and Parenting-Related De Facto Relationship Questions

    What happens if a de facto partner has children from a previous relationship – does a de facto partner have any rights or responsibilities?

    If your de facto partner (or you) has children from a previous relationship, you may be able to play an important role in that child’s life however there are some important things that you must be aware of.

    Every relationship and family dynamic is unique, and though you’re in a relationship with that child’s parent, it doesn’t automatically mean you have parental responsibility, which means that you won’t have a legal say in certain aspects of the child’s lifeParental responsibility is something that could be granted through an agreement or court order, however, if the child’s other biological parent is alive, it is unlikely.

    When it comes to custody rights and visitation, the most important thing is that the best interests of the child are considered and looked after. It’s usually encouraged that a child has a relationship with both of their parents, however, it’s not uncommon for a de facto partner to be considered and included in parenting arrangements.

    If you wish to play a hands-on parenting role in your de facto partner’s child’s life, we recommend seeking legal advice as appropriate arrangements may be able to be made through parenting plans and consent orders, though this is truly dependent on the unique circumstances of your situation.

    Can a de facto partner be recognised as a legal parent of a child born during the relationship?

    Yes, if a child is born to the de facto partners, then the de facto partners will both be legal parents of that child. The responsibilities of the parents of a child are not dependent on whether the parents were married or not. It is the same for the rights of a child, it doesn’t matter if their parents were married or not at the time of their birth. The child has the right to be cared for, protected from harm and to have a meaningful relationship with both parents.

    If the child is from a previous relationship, then the de facto partner is not a legal parent, unless in circumstances where they have adopted the child.

    How is parental responsibility determined for children in de facto relationships?

    Parental responsibility in de facto relationships is determined in the same way as it is for married couples – by considering the best interests of the child.

    Biological parents have automatic parental responsibility, regardless of their relationship status.

    In many cases, both biological parents share equal parental responsibility. However, if a de facto partner has a significant and ongoing relationship with the child, they may also be granted parental responsibility.

    Parental responsibility can be formalised through parenting plans or court-issued parenting orders. However, before formalising any agreement, it’s best to seek legal advice when it comes to parenting matters.

    Can a de facto partner adopt their partner’s child from a previous relationship?

    Yes, it is possible for a de facto partner to adopt their partner’s child from a previous relationship, however, adoption is not a simple process and definitely requires legal advice.

    Adoption is a legal process that establishes a permanent and legal parent-child relationship between the child and the adoptive parent. To be able to proceed with adoption, certain criteria and procedures must be met and adoption laws may vary between different states and territories – you can learn more about adoption here.

    Adoption is a significant legal step and should be approached with careful consideration. Seeking legal advice from a family law professional who specialises in adoption is highly recommended to understand the specific requirements, processes, and implications involved in adopting a partner’s child where you live.

    Do de facto partners have the same rights and obligations as couples who were married when it comes to child support?

    Child support is not dependent on whether the parents who had the child were married, in a de facto relationship, or not in a relationship at all, when the child was conceived.

    Providing for a child financially is the duty of the biological parents of the child.

    A person who starts a de facto relationship with a person who already has children does not have a legal obligation to support those children except in special circumstances.

    You can learn more about child support and how it works in Australia here.

    Family lawyers for de facto matters in Australia

    If you’re looking for a family lawyer to help handle your de facto matter, then here at Unified Lawyers, we’re here to help. Our experienced team has helped countless de facto couples sort through financial, property and parenting-related matters to find the right outcome for their situation.

    We know every situation is different and we’re here to find the right solution for you.

    We can help you Australia-wide too, and with offices based in BrisbaneSydney and Melbourne, it couldn’t be easier to work with the best family lawyers in Australia.

    Call us on 1800 431 519 or book a free consultation using the button below.

    Keep tuned for part two of our guide to de facto relationships in Australia.

    “All materials throughout this entire website has been prepared by Unified Lawyers for informational purposes only. All materials throughout this entire website are not legal advice and should not be interpreted as legal advice. We do not guarantee that any of the information on this website is current or correct.
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    All information on this site is not intended to create, and receipt of it does not constitute a lawyer-client relationship between you and Unified lawyers.
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