Family Law

De Facto Relationships

What are de facto relationships and how do they differ from marriage?

These days, de facto relationships are generally viewed as marriages without the rings or expensive ceremony.

The laws surrounding de facto relationships mirror this societal shift. People within de facto relationships are entitled to relationship rights that are protected by the law, both during and after the relationship ends. Relationships, whether they are classified as ‘de facto’, ‘marriage’ or something else entirely, all deserve proper legal representation if it is ever required.

What is a de facto relationship?

While the definition of a de facto relationship remains the same across all Australian states and territories, it can be complicated to understand its intricacies and exceptions. We’ve collated everything you need to know about what kind of relationship qualifies as ‘de facto’ below.

Legal definition of a de facto relationship

According to the Family Law Act, de facto relationships are relationships in which a committed couple live together on a ‘genuine domestic basis’. De facto couples cannot be married to one another, and can include people of the same or opposite sex.

There is no singular definition of a de facto relationship. NSW and all other Australian states and territories use the Family Law Act’s ‘genuine domestic basis’ description as the core defining principle.

However, there are several other factors that clarify whether a relationship is de facto or not, including:

  • How long you have lived together
  • Whether you share finances or one partner is financially dependent on the other
  • If you share children and parenting responsibilities
  • Whether you are sexually intimate
  • Whether other people perceive you as a couple

De facto relationships vs marriages

Unlike relationships that are de facto, marriage has a formal definition. Marriage is defined as the union of two people to the exclusion of all others, voluntarily entered into for life. It is a legally recognised union with established rights and obligations.

De facto relationships vs other types of relationships

Modern relationships are complex and so it can often be difficult to determine exactly what is ‘de facto’. Relationship classifications such as ‘friend’ or ‘roommate’, for example, do not qualify as de facto. Care relationships in which one individual provides personal care and support to another person are also not classified as de facto.

How are de facto relationships determined?

There are several legal characteristics unique to de facto relationships. It is important for people currently in a de facto relationship to understand their entitlements and rights.

How can I tell if I’m in a de facto relationship?

If you are in a serious, committed relationship with your partner, then chances are you are in a de facto relationship. NSW law does not have a single, all-encompassing definition of what constitutes a de facto relationship. Personal circumstances, such as finances or housing that represent you and your partner’s shared domestic life, are key to understanding whether you are in a de facto relationship or not.

How long do I need to be in a relationship before it is considered de facto?

Generally, the guiding rule for defining a de facto relationship is whether the couple has lived together continuously for at least two years. There are specific circumstances when the two year guideline does not apply, including:

  • Couples that have a child together
  • When a couple purchases a property in both names and moves in together prior to the two year timeframe
  • When a couple already lives together and shares a significant amount of their finances

What happens if we have children?

Both parents have parental responsibility for their child, regardless of whether they are legally married, divorced or in a de facto relationship.

The Family Law Act covers any potential disputes involving the children of a de facto relationship.

What happens if either of us aren’t citizens or permanent residents?

This depends on your visa situation.

Partner visas (Temporary) let the de facto partners of Australian citizens or permanent residents live in Australia temporarily. This type of visa can lead into the Partner visa (Permanent).

If the Australian government has already granted you a permanent visa, your relationship status cannot impact its continued validity.

If either you or your partner do not have a permanent visa and you seperate, the consequences will vary. If your Australian partner was sponsoring you in the visa application process prior to your separation, they can decide to withdraw their sponsorship. If you are dependent on your partner’s temporary visa (such as a Student visa), you will need to either apply for a new visa or make plans to leave Australia.

If you are unsure whether you need to apply for a new visa upon de facto separation, you can consult the Department of Home Affairs website.

Do I need to register a de facto relationship?

There is no legal requirement for you to register your de facto relationship.

However, there are numerous benefits to registering your de facto relationship. Upon registration, you will be provided with a relationship certificate that functions similarly to a marriage certificate. This certificate can be used for governmental processes and services, Centrelink entitlements, and tax or superannuation benefits.

You can register a de facto relationship in the following states and territories through their respective Registry of Births, Deaths and Marriages:

  • New South Wales
  • Victoria
  • ACT
  • Queensland
  • South Australia
  • Tasmania

What happens when a de facto relationship breaks down?

If your de facto relationship has recently broken down, you may be wondering whether there is an administrative or legal process you need to follow to finalise your separation.

The De Facto Separation Process

Unlike marriages, a de facto separation does not require any formal processes.

However, if you have previously registered your relationship with the NSW Relationship registry, you can apply to revoke it.

Property settlement in de facto relationships

What can a de facto claim upon separation?

Simply put, a de facto can claim an equitable share of the property of the relationship. Property of the relationship can include assets and debts held in either one of the partner’s names, or both.

Not all couples have shared property to divide upon separation. If property settlements are required, most decisions can be arranged outside of court.

There are three ways you can finalise property settlement upon a de facto separation:

  1. Make an informal agreement
    An informal agreement is decided upon by you and your former partner, often without legal help. Informal agreements are not enforceable by a court.
  2. Make a financial agreement
    A financial agreement is a contract between two or more parties made under Division 4 of Part VIIIAB (for de facto relationships) of the Family Law Act 1975. In order to be binding, a Financial Agreement must fulfil a number of technical requirements.
  3. Get a consent order from the court
    A consent orders is a written agreement between two parties that is filed in court. Once approved, it becomes an enforceable court order.

In cases where the division of assets is not mutually agreed, a court may need to provide financial orders or spousal maintenance.

Find out more about spousal maintenance in NSW.

How do children affect the break-up process?

Having a dependent child will inevitably change the de facto separation process, both legally and privately. There are several options designed to help you determine future child support management including:

  1. Applying for a Child Support Assessment through Services Australia. A Child Support Assessment calculates whether there are any significant discrepancies in the parties’ incomes that could be resolved by one party paying child support.
  2. A Private Child Support Agreement — a binding written agreement where both parties obtain independent legal advice.
  3. A court order mandated under Section 124 of the Child Support Assessment Act. Court orders are made after being heard by a judicial officer, or when the parties have entered an agreement and apply for a consent order in court.

What happens if my partner passes away?

This depends on whether your partner died with or without a Will. If you are named as a beneficiary of your partner’s Will, then your de facto relationship status is inconsequential.

If your partner died without a Will, they can be described as dying intestate. Dying intestate means that the deceased person’s Estate will be distributed according to the provisions in the Succession Act. Both married and de facto partners have certain rights under this Act, meaning that you may be entitled to acquire part or all of your partner’s Estate.

Get advice from our family lawyers

De facto separation is an extremely technical area of law that is often accompanied by difficult and emotional circumstances. Our qualified family lawyers in Sydney are here to help with all aspects of your matter. Contact us on (02) 8819 4399 for a free initial phone consultation.

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