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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, see our page on Property Rights in De facto Relationships.

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.

Contact us to find out more about how other legal areas can impact your de facto status.

We’ve helped many clients secure their legal rights as de facto partners.  We can help you too.