The Relevance of a De Facto Relationship in Australia

Australian society has long recognised the existence of non-traditional domestic partnerships. This has been reflected across various laws, with de facto relationships holding significant weight from a legal perspective. This can be a confusing area, especially when it comes to understanding what a de facto relationship is and why it matters from a legal stance.

So, why is this important, and what does it mean for you?

This article explains what constitutes a de facto relationship in Australia, how the law determines if one exists, and why this status is so relevant, particularly in family law and financial matters. The information is general only and is not intended to be legal advice. If you need guidance, we recommend consulting an experienced lawyer.

What is a De Facto Relationship?

The Latin term “de facto” simply means “in fact” or “in reality”. In a legal sense, it means a couple is living together on a genuine domestic basis, even though they aren’t married.

The definition of a de facto relationship is found in section 4AA of the Family Law Act 1975 (Cth). The Act is a federal law, and its principles are applied across Australia, although some states have their own specific laws that also deal with de facto relationships, particularly in areas outside of family law.

According to the Family Law Act, a person is in a de facto relationship with another person if:

• They are not legally married to each other.
• They are not related by family.
• They live together on a genuine domestic basis.

The third point is the one that often requires the most thought, and the law looks beyond simply sharing a house. To determine if a genuine domestic basis exists, a court will consider various factors. No single factor is more important than another, and a court will look at all of them to get a complete picture of the relationship.

These factors include:

• The duration of the relationship: How long have you been together? Generally, a de facto relationship needs to have lasted for at least two years. However, this is not a strict rule, and there are exceptions.
• The nature and extent of your common residence: Do you live together? Do you have shared responsibilities for the home?
• Whether a sexual relationship exists: This is one of the factors, but it is not a defining one. A couple can be in a de facto relationship even if they no longer have a sexual relationship.
• The degree of financial dependence or interdependence, and any arrangements for financial support: Do you share bank accounts, split bills?
• The ownership, use, and acquisition of property: Do you own assets together, like a car or a house?
• The degree of mutual commitment to a shared life: Do you consider yourselves a couple and present as such to the world?
• Whether the relationship is registered under a prescribed law of a state or territory: In some states, you can register a relationship, which provides formal legal recognition.
• The care and support of children: Do you have children together, or do you care for each other’s children?
• The reputation and public aspects of the relationship: Do friends, family, and the community see you as a couple?

The law looks at the combination of these factors to decide whether a de facto relationship exists.

Why a De Facto Relationship is Relevant in Australia

The legal recognition of de facto relationships is a big deal because it grants de facto couples many of the same rights and responsibilities as married couples. This is most obvious in two key areas: family law and financial matters.

Family Law

For many years, couples who were not married had limited legal recourse if their relationship ended. That changed with reforms to the Family Law Act that came into effect in 2009. These changes gave de facto couples the right to ask a court to make orders about property settlement and spousal maintenance after a relationship breakdown, just like a married couple.

The principles for dividing assets in a de facto relationship are largely the same as for a married couple. A court will consider:

• The assets and debts of the relationship.
• The financial contributions each person made, such as income, savings, and assets brought into the relationship.
• The non-financial contributions. These can include caring for children, looking after the home, or supporting the other person’s career.
• The future needs of each person, such as their age, health, income, and who has care of the children.

This legal recognition means that if you are in a de facto relationship and it ends, you are protected by the same legal framework as a married couple when it comes to property division.

Financial Matters

Beyond family law, being in a de facto relationship can impact a range of other financial and legal areas:

• Superannuation: Many superannuation funds recognise de facto partners as beneficiaries for death benefits.
• Wills and inheritance: In some cases, a de facto partner can make a claim on a deceased partner’s estate, even if they were not included in the will. The law in each state and territory varies on this point.
• Social security and government benefits: Your de facto status can affect your eligibility for benefits from Centrelink, as they assess your combined income and assets.

Key Takeaways

The concept of a de facto relationship acknowledges that many people choose not to marry but still want the same legal protections and recognition as married couples.

If you are in a relationship that you think might be a de facto relationship, it is important to understand your rights and obligations, especially if you are considering buying property together or if the relationship ends. The law’s purpose is to ensure that both partners are treated fairly and that any children of the relationship are properly cared for.

The detailed and comprehensive definition of de facto in the Family Law Act ensures that the unique circumstances of each couple are taken into account, providing a flexible framework for addressing a wide range of situations.

For help or advice, please call +61 2 9283 3344 or email [email protected].