De Facto Relationships

1. What is a DeFacto Relationship?
2. What are my rights in a de facto relationship?
3. De facto relationship separation

If you meet certain criteria, such as having a genuine commitment to one another and living under the same roof, you may be in a de facto relationship. But what does “de facto” mean and what are your de facto relationship rights if you separate? Keep reading to learn more or speak to one of the family lawyers from Owen Hodge if you have any questions.

What is a de facto relationship?

A de facto relationship is where two people (of either the same or opposite sex) are not legally married or related to one another, but live together as a couple on a genuine domestic basis.

How long before a de facto relationship is legal?

Usually, the rights afforded to de facto couples under the Family Law Act 1975 apply when the couple has been living together for 2+ years or there are children of the relationship. However, exceptions may be made if there are significant contributions to joint property.

What is considered a de facto relationship?

In order for a de facto relationship to come under the jurisdiction of the Family Law Act, it must meet one or more of the following criteria;

1. You have lived with your partner for at least 2 years; or
2. There is a child of the de facto relationship; or
3. A party to the de facto relationship has made significant contributions to the property or finances of their partner; or
4. The de facto relationship is or was registered under a prescribed State or Territory law.
5. You must have also lived at least ⅓  of your relationship in NSW or any other State or Territory except WA.

If there is any dispute between the parties about whether a de facto relationship exists, the court will also look at the following factors:

1. The length of the relationship;
2. Whether you have shared finances;
3. Whether a sexual relationship exists;
4. Whether there is an emotional attachment;
5. Your living arrangements;
6. How you present your relationship in public.

How do you prove a de facto relationship?

To prove a de facto relationship exists, you will need to provide evidence for the above. This could include things like:

• Details about your relationship, such as:
  • How, when and where you met
  • When you moved in together
  • What you do together
  • Your plans for the future
• Financial documents, such as:
  • Joint bank account statements
  • Household bills in both names
  • Joint mortgage or lease documents
• Proof of how your share domestic matters, such as:
  • Mail or email addressed to both of you
  • Documents that prove your living arrangements
  • Statement of how you share housework
• Social proof, such as:
  • Joint invitations
  • Proof you travel together
  • Proof you do joint cultural, sporting or social activities together

What is the difference between a de facto relationship and marriage?

The key difference is that married couples only need their marriage certificate to show the existence or the length of their marriage, whilst de facto couples are often faced with the challenge of proving whether they have been living together on a genuine domestic basis.

The right to marry also grants same-sex couples the right to continue to engage in de facto relationships, in Australia. While it is believed that many same-sex couples will opt for the traditional marriage path, it is also recognised that many may not. The option is open for these couples to enter into a different form of commitment that will also be recognised.

As such, any same-sex couple that meets the criteria for a de facto relationship can claim the same legal rights as those granted to married couples.

If a same-sex couple is engaged in a relationship that maintains the characteristics of a permanent commitment, they will be considered to be in a de facto commitment. Under these circumstances, they too will have access to the various laws and support available to those who are married under the Family Law Act of 1975.

While same-sex couples will share all of the benefits of marriage that traditional couples do, they will also share the same responsibilities with regard to its dissolution or breakdown. These rights are also extended to de facto couples. In the event that either a marriage or a de facto relationship breaks down and cannot continue, all couples regardless of gender or relationship status will have access to the Family Court system and all couples will have equal rights during any dissolution process.

So, for same-sex couples, de facto vs marriage is now an option, with the same benefits and drawbacks as for heterosexual couples.

What are my rights in a de facto relationship?

As a de facto couple, you may be entitled to the following:

• If the other person in the relationship dies without a Will, you may be entitled to a share of their estate; or if they have not provided for you in their Will, you may be entitled to make a claim for financial support.
• You may be entitled to claim for workers compensation if they die on the job, as well as receive financial support.
• If you separate:
• You are entitled to support from your former partner if you care for a joint child.
• You may be able to claim for spousal maintenance.
• Your property/assets will be divided according to the Family Law Act (if required).

De facto relationship separation

Similar to a marriage separation, your property (including liabilities and assets) may need to be divided. Before taking the matter to court, the court does encourage ex-spouses to make a genuine attempt to come to an agreement. You can then have a property settlement lawyer draw up a legally binding agreement, which could be in the form of a financial agreement or consent order that gets sealed by the court.

If you can’t reach an agreement, then the matter will need to be decided in family court. In such situations, we highly recommend engaging a lawyer to help guide you through this process.

Learn more:

• De facto property settlement
• Dividing assets in divorce
• Splitting superannuation after separation

De facto application time limits

If you are or have been in a de facto relationship, and you require the assistance of the court to resolve your financial or spousal maintenance matters with your partner, then you must remember that there is a time limit for making your application to the court.

Your application must be made within 2 years of the end of your relationship. If you want to make an application to the court outside of this timeframe, you must seek the permission of the court to do so and there is no guarantee that permission will be granted.

Speak to Owen Hodge

If you’re experiencing a de facto relationship break up in NSW, our de facto and divorce lawyers are here to answer any questions you may have. Please contact us on 1800 770 780 to have a chat or make an appointment.