Important Information About De Facto Relationships

What is a de facto relationship?

A de facto relationship is when you and your partner are in a relationship and live together as a couple but are not married. Having regard to all the circumstances of the relationship, the couple must be living together on a genuine domestic basis.

The partners of the couple can be of opposite sex or same-sex. The partners must not be related by family. A de facto relationship can also exist even if one person of the couple is already legally married to a third party or in a de facto relationship with another party.

What determines the status of a de facto relationship?

The following circumstances may be considered to determine whether the persons have a relationship as a couple:

• the duration of the relationship;
• the nature and extent of their 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 is or was 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.

It is noted that no particular finding in relation to any of the above-mentioned circumstances is to be regarded as necessary in deciding whether the couple in is a de factor relationship. For example, it is not necessary for the couple to have children in their care and support in order for their relationship status to be defined as a de facto relationship.

Registering a de facto relationship

Couples living in the State of New South Wales can register the status of their de facto relationship via Service NSW.

The eligibility criteria for registration includes:

1. One partner of the couple lives in NSW.
2. Both partners are over 18 years of age.
3. The partners are not in a registered relationship in another Australian state or territory.
4. The partners are not married to each other or another person.
5. The partners are not in a relationship as a couple with another person.
6. The partners are not related by family. 

Seeking a financial settlement post break down of a de facto relationship

Following the breakdown of a de facto relationship, it may be appropriate that one partner the former couple seeks a financial settlement such as an alteration of property interests, splitting of superannuation interest, and/or spousal maintenance. If the former couple is able to determine such matters privately, then a property settlement can be achieved by entering into a financial agreement or consent orders. It is noted that consent orders must be filed with the Federal Circuit and Family Court of Australia within 2 years of the former couple’s date of separation.

In the event that the former couple is unable to come to an agreement, then one partner may seek the Court’s intervention and commence proceedings. However, before the Court can determine the dispute, the applicant must satisfy the Court that the former couple was in a genuine de facto relationship, which has now broken down, together with at least one of the following criteria points:

1. the couple separated after March 2009;
2. the de facto relationship was at least 2 years long; and/or
3. there is a child of the de facto relationship; and/or
4. the relationship is or was registered under a prescribed law of a state or territory; and/or
5. one the partners made significant (financial and/or non-financial) contributions to the property of the other, and the failure to now make a Court order would result in a serious injustice.

Additionally, the applicant must have a geographical connection to the Court where the proceedings are to be commenced.

Again, an application by a partner of a former de facto relationship must be filed within 2 years of the former couple’s date of separation.

If you would like advice about your family circumstances and your options, please contact our firm for an appointment.

Disclaimer: This publication provides general information of an introductory nature and is not intended and should not be relied upon as a substitute for legal or other professional advice. While every care has been taken in the production of this publication, no legal responsibility or liability is accepted, warranted, or implied by the authors or our firm, and any liability is hereby expressly disclaimed.