De Facto Relationships

Navigating the legal landscape of de facto relationships can be complex, especially when it comes to understanding your rights and obligations.

In Australia, de facto relationships are recognised under the Family Law Act 1975, which means that de facto couples have similar rights and responsibilities as married couples when it comes to issues like property division, spousal maintenance, and parenting matters.

Whether you're just beginning to understand your legal status, considering registering your relationship, or facing separation, it's crucial to be well-informed to protect your interests. Contact ABKJ Lawyers for legal advice on family law matters for de facto couples.

WHAT IS A DE FACTO RELATIONSHIP?

The meaning of “de facto relationship is defined in the Family Law Act 1975 as:

A person is in a de facto relationship with another person if:

(a)       the persons are not legally married to each other; and

(b)       the persons are not related by family; and

(c)       having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

The Family Law Act also provides that:

  1. a de facto relationship can exist between two persons of different sexes and between two persons of the same sex; and
  2. a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

How do I know if I am in a de facto relationship?

There are many factors to consider in determining whether a de facto relationship exists or not. The Family Law Act provides that in working out if persons have a relationship as a couple, the circumstances may include any or all of the following:

  • The duration of the relationship
  • The nature and extent of the couples’ common residence
  • Whether a sexual relationship exists
  • The degree of financial dependence or interdependence, and any arrangements for financial support, between them
  • The ownership, use and acquisition of their property
  • The degree of mutual commitment to a shared life
  • Whether the relationship has been registered under a prescribed law of a State or Territory as a prescribed kind of relationship
  • The care and support of children
  • The reputation and public aspects of the relationship

The Court has a wide discretion to give such weight as it may choose to whichever circumstances it thinks most relevant in determining the existence of a de facto relationship. 

How do I prove I am in a de facto relationship?

Circumstances that may support an assertion that a person is in a de facto relationship include, but are not limited to:

  • Joint liabilities (e.g. utility bills, phone bills, rent)
  • Shared bank accounts (joint accounts)
  • Shared household expenses (grocery bills, daily expense etc.)
  • Registering your relationship with your state
  • Joint lease agreements/ownership of property
  • Evidence of joint activities

How can I register my de facto relationship?

In Queensland, couples can register their relationship as a civil partnership by applying to the Queensland Registry of Births, Deaths and Marriages. Each person must be 18 years or older, and at least one partner must live in Queensland.

A civil partnership will not be registered until the expiration of a “cooling off” period of ten full days after the couple submits their application – and their application is compliant.  An application is compliant when it has been completed in full and submitted with all required supporting documents and payment of the registration fee.

The couple won’t automatically receive an official civil partnership certificate. However, they may choose to order and pay for one at the time their application to register a civil partnership is submitted.

The steps to successfully register your relationship include:

  • Visit the Queensland Government website to ensure you and your partner are eligible to register your relationship as a civil partnership;
  • Print out and complete a civil partnership application form;
  • Pay the registration fee;
  • Visit a Justice of the Peace, barrister or solicitor, a registered celebrant or other qualified witness with your required documents to have them certify the application form and your proof of ID documents.
  • Attach the certified proof of ID documents, eligibility documents and evidence that one partner lives at a Queensland address to the application form.
  • Post (or deliver in person by requesting an appointment) these documents to the Brisbane registry customer service centre.

What are my entitlements as a de facto partner?

De facto relationships are treated the same as married couples under the Family Law Act. This includes rights and obligations relating to separation, the death of a partner, children, asset division, and spousal maintenance.

WHAT HAPPENS AFTER A DE FACTO COUPLE SEPARATES?

Gateway Requirements – Financial Matters

The Family Law Act provides that a court may only make an order with regards to maintenance, urgent maintenance, property, or a declaration regarding interests in property in relation to a de facto relationship if the court is satisfied:

(a)       that the period, or the total of the periods, of the de facto relationship is at least 2 years; or

(b)       that there is a child of the de facto relationship; or

(c)       that:

       (i)         the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and

       (ii)        a failure to make the order or declaration would result in serious injustice to the applicant; or

(d)       that the relationship is or was registered under a prescribed law of a State or Territory.

Once a de facto relationship has been established, the de facto couple’s obligations with regards to financial matters are the same as married couples, although different sections of the Family Law Act apply. For more information, please read the prescribed Federal Circuit and Family Court of Australia brochure “Before you file – pre-action procedure for financial cases”. 

Parenting Matters

De facto couples’ obligations with regards to parenting matters are the same as married couples.  For more information, please read the prescribed Federal Circuit and Family Court of Australia brochure “Before you file – pre-action procedure for parenting cases”. 

FINANCIAL AGREEMENTS AND DE FACTO RELATIONSHIPS

De facto couples may choose to enter into a Financial Agreement before, during or after their relationship. The Financial Agreement may provide for the division of their property, superannuation and/or spousal maintenance in the event their de facto relationship breaks down.

There are different requirements outlined in the Family Law Act depending on what stage of the relationship you are in. For more information about Financial Agreements, please refer to our previous articles:

TIME LIMITS AND DE FACTO PROPERTY SETTLEMENT

It is important to note that in the event of a de facto separation, there is a two-year time limit after the relationship ends within which the parties may jointly, or separately, make an application to the Court seeking orders which will have the effect of adjusting their financial interests and/or maintenance with respect to their de facto relationship.

While there are some exceptions to this two-year time limit, it is important to obtain independent legal advice in relation to your specific circumstances, so that you can make informed decisions about what is best for you.

Contact Us

If you are navigating de facto relationship separation or would like to learn more, we welcome you to contact our family law team or call directly on (07) 5532 3199.