There is often confusion concerning what it means to be in a de facto relationship in Australia. Many people are unsure as to when a relationship is legally considered to be de facto, as well as the potential legal considerations that can accompany the breakdown of a de facto relationship.
Here, we answer some common questions regarding being in a de facto relationship in Australia:
What is a de Facto Relationship in Australia?
The Family Law Act 1975 defines a person as being 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.
This applies to both heterosexual and same-sex couples, and may even apply to people or couples in multiple partnerships simeltaneously.
While this definition may seem straightforward at first glance, the concept of a ‘genuine domestic basis’ is one that can be assessed according to a variety of considerations.
Often the definition of what constitutes a de facto relationship can require the court to make a determination, particularly in the event of a separation where one person may contest the legal nature of the prior relationship.
How Do Courts Determine if a de Facto Relationship Exists?
When a court considers whether a couple should be considered to be living together on a ‘genuine domestic basis’, they will consider factors including:
- The duration of the relationship
- Whether a sexual relationship exists
- The degree of mutual commitment to a shared life
- The existence of any children
- Whether one partner is financially dependent on the other
- The reputation and public perception of the relationship
Typically, in order to convince a court that you were previously or are currently in a de facto relationship in Australia, you will need to prove that you have lived together with your partner for at least two years, although if there is a child in the relationship the court may overlook this requirement.
By assessing these and other factors concerning the relationship, the court will decide whether your relationship should be legally defined as de facto. It’s worth noting that there is no specific factor which the court necessarily gives more weight to than any other, and that each case of determining de facto status is examined on its own merits.
What are the Legal Implications of Being in a de Facto Relationship in Australia?
People who are part of a de facto relationship in Australia have similar legal rights and responsibilities to those of people in marriages. For example, if your de facto partner dies you may be entitled to a share of the intestate estate or financial assistance under the Succession Act, as well as potential social security or worker’s compensation (if your partner died during employment).
The separation process in de facto relationships is also similar to that of marriages, and as such will entail considerations such as:
- Division of property
- Living arrangements of any children
- Potential child support or spousal maintenance claims
- Will and estate plans
The imprecise nature of determining de facto status means that upon the breakdown of a relationship, parties may argue about whether the relationship was de facto or not, and how long the relationship lasted. In fact, it is completely possible that you may have been involved in a de facto relationship without even realising or considering it.
If you are trying to prove that a relationship was de facto, evidence which can be presented to a court can include items such as:
- Text messages and emails between the parties
- Statements from family and friends about the relationship
- Bank statements
- Photos of the couple on social media
- Whether a partner has been listed as a spouse on tax returns
If you are separating from a relationship and are unsure if it was de facto, or are seeking to make a financial claim against an ex-partner which entails proving that the relationship was de facto, it’s wise to seek proper legal advice.
Can a de Facto Couple Register Their Relationship?
It is possible for a couple involved in a de facto relationship in Australia to formally register their relationship with the government. This will mean that your relationship will be termed a ‘civil partnership.’
Registering a civil partnership means that you will never be required to provide any further proof of your relationship, making it easier for you to organise things which may request proof of a relationship such as superannuation, government payments and tax.
Speak to a Lawyer About Being in a de Facto Relationship in Australia
If you are about to start living with someone and want to create a financial agreement to help secure your future, or you are separating from a relationship and want to know whether it could be legally classified as de facto, our lawyers at Emerson Family Law can help. Contact us and we can discuss your relationship and any legal concerns or queries you may have.