Typically, couples who have been living together for two years are described as being in a de facto relationship. It’s important to understand what your legal and financial rights are outside of marriage, because you do have them. There are a few ways you can work out if your relationship might be considered de facto but, for legal advice, we recommend you consult a lawyer.
What is a de facto relationship?
Before going any further, it’s important to understand what a de facto relationship is.
To save you some time searching the archives, we’ve defined it:
A person is in a de facto relationship with another person if they are living (or have lived) together on a ‘genuine domestic basis’. This means that the couple is mutually committed to a future shared life together, which is covered in more detail below.
If you want the full definition, it’s outlined in detail on page 34 of the Family Law Act of 1975 under Section 4AA.
What does a de facto relationship mean for you and your partner?
Being in a de facto relationship essentially means you’re in a relationship that is legally binding. You may want to get advice on what that means for your tax and it may also make a difference with government benefits like welfare payments.
A de facto relationship is also legally binding in the event of a breakup. This means that you have legal entitlements and rights if your relationship ends. These de facto relationship entitlements may relate to the division of assets, property, and finance. Of course, if you have children together, there will be entitlements and rights under law as well. You should talk to a lawyer to obtain appropriate legal advice.
Because the de facto definition is rather broad, it’s important to know that legally each relationship is assessed on a case-by-case basis.
Are you in a de facto relationship?
How do you know if you’re living together on a ‘genuine domestic basis’? The simplest way to think about it is to ask yourself if you’re living together as if you were married. You don’t necessarily have to have lived together the whole time, but you’ve sufficiently merged your lives together.
Some of the things to think about when establishing whether a de facto relationship* exists are:
- The financial aspects of the relationship – do you share the costs of utilities?
- Groceries? Is one of your supporting the other financially?
- The nature of the household – do you share household responsibilities like housework, cooking and expenses?
- The social aspects of the relationship – do you share social circles and engage in social activities together?
- The nature of the commitment – have you made an agreement about being in a relationship?
*A de facto relationship can exist between two persons of different sexes and between two persons of the same sex; and a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
If you want to register for legal recognition of your relationship with your relevant state government, you may. Usually, being in a de facto partnership will require you to have lived together for at least a year before you apply, and each of you must complete an application. You’ll be asked to provide the details of the relationship and some proof of identity. (If you’ve been married or had a previously registered relationship, you must also provide evidence of single status.)
De facto relationship visa laws
The de facto partner of an Australian citizen, permanent resident, or eligible New Zealand citizen may be eligible for a partner visa. This involves a two-stage process. The couple submit a combined application for a temporary and permanent visa – first the temporary visa for two years, and then the permanent visa afterwards (in some cases the permanent visa may be granted from the outset). You need to submit evidence – this might include written statements, financial receipts, lease agreements, social media posts, joint subscriptions etc. – with your application that the relationship is legitimate and ongoing. If you’re thinking about declaring you’re in a de facto partnership, you may also want to think about what this means for your assets and finances.
De facto relationship entitlements in a breakup
Your entitlements and rights become important when a partnership ends. You can think about it as being similar to getting a divorce if you were married.
Entitlements can include claims on property, savings, assets, and superannuation. The laws for a de facto relationship mean that joint assets can be pooled together and divided.
Separating your lives and dividing your assets does not need to be done in court if you can agree on a fair division of assets. However, if you cannot agree, then you may need to head to family court or Federal Circuit Court. You must do this within two years of the breakup to be eligible for what the court calls property adjustments.
Entitlements might include:
- Cars and boats
- Financial investments (shared property or super)
- Personal assets (furniture, jewellery, TVs, etc.)
- Spousal maintenance or de facto partnership maintenance
- Home loan debt
- Credit card debt
Things to consider
De facto breakups are very similar to divorce and can be very challenging, both emotionally and financially. The legal process can be very drawn out and expensive. Because it can take years to reach a final hearing, it’s important to make every effort to try and settle the dispute fairly outside of court. This can be done with a separation agreement (or binding financial agreement), which helps to prevent further arguments or disagreements after having settled. These agreements can be made before, during, or after a relationship has terminated.
The legal process in de facto cases
In family court cases, the judge will need to be satisfied that you are living together on the ‘genuine domestic basis’ previously discussed. The judge will determine if the relevant requirements are met by considering:
- The length of the relationship – was it at least two years?
- Any children in the de facto relationship
- Substantial contributions to family welfare and/or property
- Serious injustice to an applicant
De facto law treats partners in much the same way as if you were married. This means you or your partner might be eligible for spousal maintenance and asset or property splits.
Usually, the process is to calculate total assets and debts for both of you, assess your financial and non-financial contributions to the relationship, and consider the future requirements of each of you. There is no way to determine in advance exactly how this division will be made. It’s the judge who makes a decision which they consider to be fair and equitable for both parties.
Regardless of what sort of relationship you’re in, you’re entitled to receive or provide financial support from your former partner if you have children together. Determining shared parenting responsibilities can be done out of court. However, if you can't work it out between yourselves and end up going to court, the court will make a decision that they consider to be in the best interest of the child (or children).
De facto relationships are complex. They can provide you and your partner with security, and give you access to partner visas, legal rights, and entitlements. If you are finding it difficult to talk about money in your relationship, have a look at our helpful article on discussing money with your partner.