Relationships in Australia have experienced an ongoing cultural shift in the past few decades. While marriage as an institution has declined in popularity, the 2016 Census found one in six Australians aged 15 or over now lives in a de facto relationship.

Despite that development, many people are unaware of the legal status of de facto relationships, particularly when such a relationship ends and issues such as splitting property assets, child maintenance and custody arise.

In fact, a de facto relationship is defined under section 44A the Family Law Act 1975 as a relationship between two people (including same-sex people), who are not otherwise legally married or related by family, who with regard to all the circumstances of their relationship, live together on a ‘genuine’ domestic basis.

While this definition appears quite self-explanatory, it is sometimes varied or applied differently depending on a de facto couple’s interaction with a government agency or certain legislation. Additionally, where it’s uncertain whether the relationship is genuinely ‘de facto’, the courts will evaluate it on the basis of a number of factors such as the duration of the relationship, the financial dependence between the parties and whether there are children from the relationship.

The rights of parties to a de facto relationship are not dissimilar to those of married couples. If your de facto partner died, for instance, among other claims you could:

• Be entitled to a share of his or her estate;
• receive funds under workers’ compensation, if your partner died at work;
• claim social security.

These rights make it important to be able to prove your relationship can be classified as de facto.

This article will provide some greater detail on how a de facto relationship is assessed but if you are in any doubt about the status of your relationship, you should always seek expert legal advice from an experienced family lawyer.

How the law considers de facto relationships

A de facto couple’s rights in regards to issues such as property settlement, child maintenance and separation are dealt with under the Family Law Act 1975, except in Western Australia where the Family Law Act 1997 (WA) applies.

Just like married couples, issues related to children and financial settlements in the event of a breakdown of a de facto relationship can be determined by application to the Family Court or Federal Circuit Court.

But whereas a married couple can produce a marriage certificate to prove the existence of their relationship, in some cases a relationship that qualifies as de facto under the Family Law Act definition will be difficult to show, particularly where one party to the relationship contests that characterisation.

In these circumstances, the court will evaluate the relationship using a number of different factors. At this point it should be noted that not all of the factors considered by the court need to be present in order for a de facto relationship to exist, nor is one factor necessarily more important than another.

It’s also possible for a person to be in a de facto relationship even if they are legally married to someone else, or in a second de facto relationship with another person.

What factors help determine a de facto relationship

The first factor considered by a court is the duration of the relationship. A couple who have lived together for a period of two years or longer is supportive of a finding the parties are in a de facto relationship.

Similarly, a child or children produced from the relationship may help prove de facto status, or provide an exception to the requirement that you lived together as a couple for a minimum two years. The fact the relationship is or was registered under a prescribed law of a State or Territory also provides proof of a de facto relationship and may also cause rights and obligations between the partners that are similar to marriage.

Other factors considered by the court include:

• Whether a sexual relationship existed between the parties;
• the extent and nature of a shared residence;
• to what extent the parties were financially dependent on each other;
• the mutual commitment of the couple to a shared life;
• the reputation of the relationship, as in whether family and friends recognised the parties were in a relationship and the couple represented themselves to others in that way;
• facts about the ownership, use and acquisition of the parties’ property.

Again, not all these factors need to be present in order to determine a de facto relationship existed but because evidence may need to be provided to the court to show you have been in such a relationship, it’s a wise course of action to seek legal advice before making any application to the court. An experienced family lawyer can help you organise the material needed to ensure you meet the criteria used to establish de facto status.

Since 1 March 2009, parties to an eligible de facto relationship which has broken down can apply to the Family Court or the Federal Circuit Court to have financial matters determined in the same way as married couples.

Applying for de facto financial orders must happen within two years of the breakdown of the relationship, after which the court’s permission is required. For the court to resolve a financial dispute between former de facto partners, it must be satisfied of the following:

• You were in a genuine de facto relationship with your former partner which has broken down.
• You meet one of the following four gateway criteria:

– That the period for the de facto relationship is at least two years;

– that there is a child in the de facto relationship;

– that the relationship is or was registered under a prescribed law of a State or Territory;

– when assessing property or custodial claims in cases of a breakdown of a relationship, it is recognised that significant contributions were being made by one party and the failure to issue an order would result in a serious injustice.

• That you have a geographical connection to a participating jurisdiction.
• Your relationship broke down after 1 March 2009. You may still be able to apply to the courts if your relationship broke down prior to the date applicable to your state.

The role of mediation

Like married couples, many de facto couples would prefer to avoid the costs, stress and delays of the court process. In this situation conducting a civil discussion about issues such as a financial settlement, child rearing and maintenance with the support of a trained mediator or collaborative lawyer outside of the courts is often a more effective means of dispute resolution.

In fact, mediation is mandated by the Family Court or the Federal Circuit Court as a ‘pre-action procedure’ when a separating de facto couple applies to the court for parenting orders.

Similarly, for property or financial settlements, mediation is the best first step. Many de facto couples will make a financial agreement before or during their relationship, or in anticipation of the relationship ending. For such an agreement to be legally binding, both parties must have signed the agreement and have received independent legal and financial advice before signing. The parties can then apply for Consent Orders from the court in order to formalise the agreement. The court must be satisfied the agreement is “just and equitable” to both parties and is the product of independent legal advice.

In conclusion

In many respects, de facto relationships in Australia are treated very similarly to those of married people. In other ways, however, in the absence of formal registration of the relationship proof is sometimes required to establish de facto status. Centrelink, for example, consider a couple to be in a de facto relationship from the moment they start living together. Under Australia’s migration law, by contrast, parties must be able to show that they have been living together for a period of 12 months or longer.

As detailed above, where one half of the couple disputes de facto status, evidence will need to be produced to establish the relationship qualifies as de facto.

In all of these situations, consider the advice of legal professionals with expertise in family law. They can ensure your rights are protected and your obligations are met under the law in the unfortunate event that the relationship has broken down.