De Facto Relationships

Your complete 101 to the characteristics and features of a de facto partnership.

De Facto Relationships — Rights and Responsibilities in Australia

De facto relationships are common — consisting of around 18 percent of Australian couples.

But what are they? Are you already in one? And, perhaps most importantly, what are your legal de facto relationship break up rights?

When you’re in a marriage, it’s blatantly obvious. You have a ring on your finger, went through a civil or religious service, signed a marriage certificate, and most likely had a party or reception to celebrate the event. And, should you, unfortunately, split from your spouse in the future — you know you’ll have to go through divorce proceedings.

However, what’s less well understood are de facto relationship entitlements, the legal definition of this union, and what happens in the event of a break-up.

This is your complete 101 to the characteristics and features of a de facto partnership.

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What Is a De Facto Relationship?

There’s understandably a lack of confusion about what is a de facto partner relationship — since, outside of court proceedings, there’s little discussion about the subject. However, there is a strict legal definition included in Section 4-AA of the Family Law Act (1975).

It explains that two people — of the opposite or same sex — are, or were, de facto partners if they have or had a relationship as a couple living together on a genuine domestic basis. Naturally, this excludes those people who are married, or those who are blood relations.

Are You in a De Facto Relationship?

If you have been living with your partner — without separating — for two years or more, you’re automatically determined to be in a de facto relationship under the Family Law Act.

However, if you’ve been in a partnership for less than two years — or don’t live under the same roof — you may still be considered as being in a de facto relationship.

Should the matter of your relationship status be raised in court, for example, during a property settlement, the judge may consider the following factors to ascertain whether your partnership is determined as de facto:

  • Whether you have a child with your partner.
  • If you raised a child together — whether from a previous marriage or adoption.
  • Whether you shared financial commitments and/or bank accounts.
  • If you own shared possessions, such as a house.
  • The length of your relationship.
  • If you had a sexual relationship with your partner.
  • Whether there was a separation, break-up, or one or both parties had a relationship with another person.
  • If friends and family members view you as being in a relationship.

Bear in mind that not all of the above factors have to be met for your relationship to be considered as being de facto.

Do I Need to Register My Relationship?

There is no legal requirement to register your relationship in Australia for it to be considered de facto. However, it can be advantageous to pursue this formal route — especially where there is a defacto relationship breakup.

Since the introduction of the Relationships Register Act (NSW, 2010), all couples — including those of the same sex — have been permitted to register their relationship status with the Registry of Births, Deaths, and Marriages (NSW).

And, once registered, your relationship is automatically considered as being de facto.

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This means that in any future legal matters, property settlements, ATO correspondence, or Centrelink claims, you do not have to go through the lengthy and invasive process of proving you’re in a de facto relationship.

This also allows that claims for de facto relationship break up entitlements — such as maintenance support and child custody — can be more efficiently made.

What Are My DeFacto Relationship Entitlements?

One of the most frequent questions I’m asked is what is a de facto entitled to when separated or their partner dies?

Since 2009, de facto relationship rights in Australia have been virtually the same as for those people in marriages.

For example, if your partner dies without a Last Will and Testament, their assets will be divided under intestacy rules. That is, their estate will pass to their next of kin — i.e. you as the de facto partner. This gives you the same rights under intestacy as a married person losing their spouse.

Furthermore, de facto relationship separation entitlements — for example, in maintenance payments, access to children, and property settlements — are also the same as for married couples.

There are, therefore, few disadvantages of de facto relationships. Perhaps the most significant downside is that you will need to prove that you were in a relationship to receive the same rights as a married couple.

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Making a Defacto Separation

If you’re considering a defacto relationship breakup, there are crucial steps you need to take immediately.

These protect your interests, defend your and your children’s wellbeing, ensure that you meet legal time frame requirements, and safeguard de facto break up entitlements in Australia — all outlined in my Separation Checklist.

In many circumstances — especially where the split is amicable — financial and familial arrangements can be made through informal agreements, Consent Orders, or Binding Financial Agreements.

Where this isn’t possible, desirable, or achievable — you can apply to the FCFCOA (Federal Circuit and Family Court of Australia) for a property settlement.

and Family Court of Australia) for a property settlement. Bear in mind that this must be applied for within two years of the date of your initial separation. There is, however, no time limit set for parenting orders.

DeFacto Relationships Final Thoughts

De facto relationships can offer a welcome alternative to the formality of marriage, while providing virtually the same legal entitlements.

However, in the unfortunate event of a break-up or dispute, it’s important you take prompt expert legal advice from a Family Lawyer. This will ensure that you meet any statutory requirements in the event of a property settlement, and verify — where needed — that your relationship meets the de facto definition.

Falzon Legal offers compassionate and confidential guidance on all de facto relationship matters. Whether you’re considering registering your partnership, thinking of separation, or worried about your entitlements — we have the expertise to help.

Talk with us today to ensure your de facto relationships rights are defended.