21 Nov What is a de facto relationship?
Most people will have heard the phrase ‘de facto’ among friends, or in the media. But even though it’s commonly used, it’s not often properly understood. What is a de facto relationship? How do you know if you’re in one? And how does this impact you under Australian law, particularly if you are thinking about separating?
We’ve got the answers for you!
In this article:
- What is a de facto relationship?
- What are the legal implications of being in a de facto relationship?
- Do you have to register your de facto relationship to protect your rights?
- Separating as a de facto couple
- Financial settlement as a de facto couple
- How Toomey Family Law can help
What is a de facto relationship?
Section 4AA of the Family Law Act 1975 defines a de facto relationship here in Australia as a couple that is not legally married or related to each other but lives together on a ‘genuine domestic basis’.
To determine whether or not two people are actually in a de facto relationship – or are living together on a genuine domestic basis – the Court will look at certain factors such as:
- How long they’ve been in the relationship
- Whether the relationship is sexual
- Their financial interdependence
- Whether they own or use property together
- How committed they are to sharing their life
- Whether they have children or share the care of children
- How they are viewed by others
So, if you’re living together, share bills and attend social events as a couple, you will likely be considered a de facto couple. On the other hand, if you don’t have a sexual relationship or share bank accounts, for example, you may not. It’s also important to note that you don’t necessarily have to be living together full-time. Many FIFO couples would still be considered de facto, for example.
While every de facto relationship will look different, typically, the Court won’t consider you to be de facto unless you’ve been living together for at least two years, have a child together or have made a substantial contribution to the relationship, such as the joint acquisition of property.
What are the legal implications of being in a de facto relationship?
In general, if you’re considered to be in a de facto relationship in Australia, you have similar legal rights and entitlements as married couples do. This includes:
- The right to seek a property settlement following a separation that accesses the relationship property pool
- The benefits that come from that property settlement
- The right to seek ‘spousal’ or de facto maintenance post-separation
- The right to seek child support post-separation
But just as you have similar rights to married couples, you may also have similar obligations. In other words, you may be required to pay de facto maintenance or child support if you separate from your de facto partner.
Do you have to register your de facto relationship to protect your rights?
You do not have to register your de facto relationship to protect your rights in Australia. In fact, registration doesn’t ordinarily provide any additional rights or entitlements beyond what the law already provides you. The major advantage to registration is that it is proof of the existence of your relationship, which means you never have to ‘prove’ your status again.
If you do want to register your relationship, get in touch with Queensland’s Births, Deaths and Marriages office to start the process. You can then register as a ‘civil partnership’. However, if you want to end your civil partnership once it’s registered, you will need to do so officially as well.
Separating as a de facto couple
One of the benefits of your de facto status is that there are no legal requirements (other than if you’ve registered as a civil partnership) to end your relationship, unlike when you are married and need to obtain a divorce order.
To separate one or both of you simply need to decide to end the relationship and then take active steps to make that happen. This might include moving out of the shared home, notifying Centrelink or separating your finances.
Financial settlements as a de facto couple
Of course, property settlement is a separate issue and will follow the same process as those who are divorcing. This will involve identifying the shared asset pool, determining the contributions (both financial and non-financial) of both parties and dividing the property in a manner that is just and equitable.
There is a time limit for financial settlements as well. Once the relationship ends, you and your ex-partner have two years from the date of separation to finalise or initiate Court proceedings with respect to property settlement or spousal maintenance matters.
How Toomey Family Law can help
We hope we’ve answered the question of ‘what is a de facto relationship’. But if you’re still wondering whether you’re in one, or what your specific rights and entitlements might be, get in touch.
At Toomey Family Law, we specialise in family law, including de facto separation cases. We’re happy to answer all your questions and help guide you through the process so you can get the best results for your situation.
Get in touch today or check out our free resources page for more information.