Overview

The Family Law Act defines a couple as being in a de facto relationship if:

(a) they are not legally married to each other; and (b) they are not related by family; and (c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

In determining whether a couple is living together on a “genuine domestic basis”, section 4AA(2) provides a list of factors to consider. 

Although de facto relationships take many forms, in the typical scenario of an unmarried a couple living together and having an intimate and sexual relationship, this will usually meet the legal criteria.

When a couple does not live together permanently or their relationship does have all of the “typical” factors, they can still be in a de facto relationship if a combination of other factors is strong enough to demonstrate that the relationship was “marriage-like”. However, in these cases, it can be more difficult to advise with certainty whether the Court would find that there was a “de facto” relationship or not. 

When a de facto couple separates, one of them may be entitled to make a financial claim against the other if one of the section 90SB criteria is met:

• the length of the de facto relationship was at least 2 years, or
• there is a child of the de facto relationship, or
• the party made substantial contributions and would suffer serious injustice if they cannot make their claim, or
• the relationship is or was registered under a prescribed law of a State or Territory

There is a time limit of 2 years from the date of separation for a de facto partner to make a financial claim. After that time limit expires, leave (permission) of the Court is required to make a claim.

Because the date of separation is often contested, if you have separated you should seek legal advice as a matter of priority.  

How we can help

We can help you understand whether you are in (or were in) a de facto relationship and your rights and obligations.

If you have separated, we can give you advice about a financial settlement and if you require we can represent you in negotiations or court proceedings.

If you have started (or are looking to start) a de facto relationship, we can also give you advice about making a prenup.