What is a de-facto relationship in Australian family law?

In Australia, being in a de facto relationship means three things:

1. You and your partner are not legally married to each other;
2. You are not related by family; and
3. You are a couple living together on a genuine basis.

But how do you decide whether you are a couple living together on a genuine basis?

The Court has regard to all the circumstances of the relationship, but the main factors are listed in Section 4AA of the Family Law Act 1975 (Cth):

• The duration of the relationship
• How long were you together?
• The nature and extent of their common residence
• When did you move in together?
• How long were your living together?
• Whether a sexual relationship exists
• The degree of financial dependence or interdependence, and any arrangements for financial support, between them
• Do you have combined finances?
• Do you financially support each other?
• The ownership, use and acquisition of their property
• Did you buy property together?
• The degree of mutual commitment to a shared life
• Do you have shared life goals?
• Do you support each other in your endeavours?
• Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
• The care and support of children;
• Do you have children together?
• How do you care for and support these children together?

• The reputation and public aspects of the relationship.
• Do people know that you are together?
• Do you introduce this person as your romantic partner?

It is important to note that you do not have to have all of these requirements to be considered in a de facto relationship, these are just some of the things that the Court considers.

Why does it matter?

When de facto relationships break down, the parties have access to the Court’s resources for both property and parenting matters. That is, you are able to approach the Court if you disagree, and the Court will make a determination as to how your assets should be divided and how your children should be cared for. If you are found not to be in a de facto relationship, you would not be able to approach the Court for assistance with these matters, you would just have to work it out between yourselves.

What happens if there is a dispute about whether we were in a de facto relationship?

Sometimes when a party applies to the Court after a de facto relationship breakdown, the other party responds by alleging that they were not in a de facto relationship.  When this happens, the Court will have what is called a “threshold hearing”. This is a separate hearing where the only issue considered by the Court is whether or not a de facto relationship exists. Each party will present evidence, and the burden of proof is on the person who claims the parties are in a de facto relationship. That is, it is that person’s responsibility to present enough evidence so that the Court can be satisfied on the balance of probabilities that the parties were in a de facto relationship.

If you are unsure whether you and your partner would be considered to be in a de facto relationship, please reach out to us for an initial consultation, and we can provide you with advice.