Married couples are clearly defined through a ceremony and marriage certificate. As a result of your marriage, you have certain legal obligations and entitlements as against your spouse. If a married couple were to separate, they are entitled to apply for relief under the Family Law Act 1975. It is however becoming more and more common in our modern Australian Society for people to form serious relationships, have children together, buy houses together, live together, but not formalise their relationship by way of marriage. What then happens when or if these relationships break down? What obligations do you owe your former partner? What relief is available to you if you are not married?
The concept of a de facto relationship has been coined to reflect our modern Australian society, and to rectify the gap in the legislation to recognise people who are in serious relationships not formalised through marriage. The legislation now recognises these relationships, and provides de facto relationships similar rights and obligations as a married couple.
De facto relationships are however not able to be so clearly defined; there is no formal ceremony or certificate. To overcome this hurdle, and meander through the grey area that is a ‘de facto relationship’, the Family Law Act 1975 focuses on the substance of an individual relationship rather than its label when determining what meets the definition of a ‘De facto Relationship’.
The Legal Definition
The definition of a de facto relationship is defined in the Family Law Act. Under section 4AA of the Family Law Act 1975, a person is in a de facto relationship if they and their partner:
- Are not legally married to each other.
- Are not related by family.
- Have a relationship as a couple living together on a genuine domestic basis, having regard to all the circumstances of their relationship.
This definition applies to both heterosexual and same-sex couples, and even in situations where one partner is legally married to someone else. Someone can also be found to be in multiple de facto relationships at the same time.
At its core, the law focuses on the reality of the individual relationship before them. There is no ‘tick a box’ checklist, and there is a broad discretion embedded in the legislation to consider each relationship individually on their unique facts and circumstances before reaching a conclusion as to their definition.
What Does “Living Together on a Genuine Domestic Basis” Mean?
Points (a) and (b) above are somewhat clear cut. The third criteria is what often provokes the most discussion and analysis. At this point, the court is required to consider a range of factors, and upon considering those factors, to determine whether a relationship meets the criteria to qualify as a ‘de facto relationship’.
These include:
- The duration of the relationship
- Whether you live together, and to what extent
- The existence of a sexual relationship
- The level of financial interdependence (shared expenses, joint accounts)
- Ownership and use of property
- The degree of mutual commitment to a shared life
- Whether the relationship is publicly recognised in the community
- Whether your relationship is legally recognised (you can register your relationship as a de facto relationship under some state legislation)
- Whether you have children together, and the care and support of children, if applicable
Importantly, no single factor is decisive. The Court has a broad range of discretion to attach what weight they deem appropriate to the evidence, and take into account essentially any fact or circumstance they deem appropriate to consider before coming to a determination.
One couple may satisfy some criteria but not all, and still be considered in a ‘de facto relationship’. Another couple may satisfy most of the criteria and still be considered not to fall within the definition of a ‘de facto relationship’.
Do we have to be living together for 2 years?
A common misconception is that you must live together for at least two years to be considered de facto. While duration is relevant, it is not an absolute rule.
In practice, a relationship may be recognised earlier if:
- The couple has a child together
- The relationship is registered under state or territory law
- One party has made significant contributions (financial or otherwise)
- But this is not an exhaustive list.
This means you could be in a de facto relationship even if you have lived together for a relatively short time; or, in some cases, even if you do not live together full-time.
Why It Matters
Understanding whether you are in a de facto relationship is not just a matter of semantics, it has real legal consequences.
De facto couples now have similar legal entitlements and obligations under the Family Law Act 1975 to married couples, for example, in areas such as:
This means that if a de facto relationship breaks down, either party would likely have the ability to commence a proceeding for relief under the Act.
So, Am I in a De Facto Relationship?
Ultimately, there is no simple yes-or-no checklist. The question depends on whether your relationship, viewed as a whole, resembles that of a couple living together in a shared domestic life.
If you are unsure, seeking legal advice can help clarify your position, particularly if property, finances, or children are involved.
Written by
Sophie Wilson
Family Law Solicitor
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