De Facto Couples

If you and your partner live together and are in a genuine relationship but are not married, you may be in a de facto relationship. Most de facto couples are treated similarly to marriages under family law.

Generally, to be defined as a de facto relationship you must have been either: together for two years, have a child together, have made a substantial contribution to the property or finances of your partner, or have the relationship registered under a State or Territory Law. Speak to a defacto lawyer in Melbourne for advice on your unique situation.

A de facto relationship is defined under the Family Law Act[1] as being a relationship between two people of either the same or opposite sex if the parties are:

1. Not legally married to each other; and
2. They are not related by family; and
3. Having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

If you are in a de facto relationship, you are able to register your relationship with the department of Births Deaths and Marriages, this provides evidence of the relationship.

If you have not registered the relationship the court may take into account the following circumstances to determine if the parties lived together on a genuine domestic basis.

1. The duration of the relationship
2. Whether the parties have a common residence
3. Whether there is a sexual relationship between the parties
4. The financial relationship of the parties
5. The ownership, use and acquisition of their property
6. The mutual commitment to a shared life
7. If the relationship was registered
8. Care and support of any children
9. The reputation and public aspects of the relationship

The court has discretion as to what weight is given to each particular factors to be considered and as to what will be considered, however they will usually consider the relationship as a whole.

A de facto partner is entitled to the same rights under Family Law that a married couple has for the division of the parties assets following a separation.

There are three ways in which a party to a de facto relationship can finalise a division of their property:

• By agreement between the parties which can be formalised by a Binding Financial Agreement which does not require the court.
• By agreement between the parties which can be formalised by the court through Consent Orders; or
• Through a property division ordered by the court.

In order for a de facto partner to have an entitlement which is enforceable in the Federal Circuit and Family Court of Australia the parties’ de facto relationship must satisfy the following:

• The period or total period of the relationship is at least 2 years; or
• There is a child of the de facto relationship; or
• That the de facto partner has made substantial contributions or a failure to recognise the de facto relationship would result in a serious injustice; or
• The relationship was registered

If you are able to satisfy the court of the above requirements, then you will be entitled to seek relief from the court for spousal maintenance and/or property orders for a property distribution, in the same way that a married couple is able to. The court will make a judgement based on the facts of the individual case as to what division of the parties asset is most appropriate.

In addition to orders for maintenance and a property division a de facto partner also has the right to claim child support from the Child Support agency for a child of the de facto relationship.

In order to prove the existence of a de facto relationship, in court, you will need to show the court, that you are not legally married to each other, and are not related to each other by family. In addition, you will need to show to the court, that regarding all the circumstances of the relationship, that you are living together on a genuine domestic basis.

The court may consider the following factors to determine whether the parties live together on a genuine domestic basis.

1. The duration of the relationship
2. Whether the parties have a common residence
3. Whether there is a sexual relationship between the parties
4. The financial relationship of the parties
5. The ownership, use and acquisition of their property
6. The mutual commitment to a shared life
7. If the relationship was registered
8. Care and support of any children
9. The reputation and public aspects of the relationship

While the above factors set out the circumstances that the court may take into account, the court is not required to consider all or any of the above circumstances. The court instead, has a wide discretion as to what they will take into account, and how much weight they will give to each factor, when determining if there is a de facto relationship or not. Usually, the court will consider the characteristics of the relationship, as a whole.  

In addition, you will also need to establish, that you have been living together for two years, or in the alternative that there is exceptional circumstances, or a child of the de facto relationship.

Since 1 March 2009, a de facto partner is entitled to the same rights under Family Law that a married couple has, for the division of the parties property following a separation.

Now, following a de facto separation, you are able to apply to the court, to seek orders for a property distribution, or in the alternative you are able to reach an agreement with respect to a property distribution, without the need for court.

If you apply to the court to seek a property distribution the court will consider:

• The assets and liabilities that you own jointly and individually; and
• The financial and non-financial contributions made by both parties; and
• The future needs of both parties;
• The current and future financial circumstances of each party; and
• The care of children of the de facto relationship

Your application to the court must be made within 2 years of the end of the relationship.