What Constitutes a De Facto Relationship in Australia?

11th February 2020

Did you know that Australia's family law is one of the most progressive in the world for couples? Talking about legal situations and relationships is hardly romantic, we know. There are many circumstances where you'll be glad you understand what your rights are though. 

The de facto relationship is a common but sometimes confusing part of Australian family law. Working out whether you're in a de facto relationship in the eyes of the law isn't black and white either. 

The legal system in Australia understands that every relationship is different. From property and other assets to children and parenting, relationships are complicated. That's why de facto relationship status in Australia isn't a one-size-fits-all law. 

If you're feeling confused and want to know what constitutes a de facto relationship, we've got you covered. Keep reading to discover how you can tell if you're in a de facto relationship and whether you need to take any action. 

So, what is a defacto relationship?

What's a De Facto Relationship in the Eyes of the Law?

It no longer matters what gender you or your partner are when considering your de facto situation. Same-sex couples have exactly the same rights as opposite-sex couples when it comes to de facto relationships. That means that no matter who you're partnered up with, you don't need to worry about if the law applies to you or not. 

A de facto relationship is a way of describing a committed, romantic relationship between two people who are not married. De facto couples have similar rights to married partners. This can ease worries about children, property or finances should your relationship break down in the future. 

A de facto relationship needs to fulfil certain criteria outlined in Section 4AA of the Family Law Act 1975. There are exceptions to be aware of though. The criteria can include all or any of the following:

In essence, a committed relationship where the couple shares a considerable portion of their lives and assets, may well be deemed a de facto relationship. 

There are exceptions and the law considers relationships on a case-by-case basis to take extenuating circumstances into account. A good example of an exception is the duration of the relationship. 

Typically, a couple should be in a genuine domestic relationship for two years to be considered de facto. However, if you have children together and the relationship breaks down before two years, the law may judge you to have been in a de facto relationship. This exception helps protect both parents and children. Joint property may also be deemed an extenuating circumstance and result in an exception to the general two-year rule.  

Do You Need a Family Lawyer for a De Facto Relationship?

For many couples in ongoing de facto relationships, there's no need for a family lawyer to be involved. If your relationship breaks down though or you want advice on your rights, then it's a good idea to consult a professional. 

As couples in de facto relationships receive similar rights and protections as married couples, if you separate from your partner, there can be complexities that require legal help. Here are a few areas where having a family lawyer is useful: 

You may also seek out the advice of a family lawyer even if your relationship isn't ending. Many de facto couples want to ensure that their rights are clear and that they are protected in various eventualities. As the de facto criteria are confusing, a family lawyer can reassure you and advise you on decisions about your future. 

The Breakup Entitlements in a De Facto Relationship

Annually, for every 1,000 residents, there are around two divorces. As divorce is always a legal process, it's an easy figure to track. As many couples in de facto relationships break up without any legal involvement, it's impossible to compare the statistics. It's safe to say though, that not every relationship will go the distance. 

Couples in a de facto relationship are given similar rights to married couples. This means that should your relationship break up, you have legal rights over property, finances and child custody. If there's a death in the couple, the surviving partner has the same rights as if they were married. 

While amicable breakups are common, even with the best intentions, communication between former couples can break down. If you find yourself in a dispute with your former de facto partner, getting the advice of a family lawyer is a must. 

As de facto breakup entitlements extend to property owned solely and jointly, as well as assets acquired before the relationship, knowing your rights prevents you from ending up in a disadvantaged position. You or your former partner may also be entitled to spousal maintenance payments in the event of your de facto relationship breaking up. 

Should You Register for a Civil Partnership?

Plenty of couples want to formalise their relationship for themselves and to assure their legal standing. There are several ways to do this and you should be able to make a choice that suits your relationship and mutual wishes. 

You can formalise a de facto relationship in the majority of states and territories across Australia. In Queensland, you can register a de facto relationship, a process which results in a civil partnership. This is a good option for couples who don't wish to get married but want legal acknowledgement of their relationship. 

While your rights won't change, registering for a civil partnership can make it easier to deal with any legal situations in the future that relate to your relationship. Many de facto couples register for civil partnerships for personal reasons too, to make a public commitment to each other. 

There's no legal obligation for you to register for a civil partnership and if you do, you must go through legal channels if you wish to dissolve it. If you remain in a de facto relationship without registering for a civil partnership, you don't have to go through official channels to break up in the eyes of the law.  

Understanding Your Rights in a De Facto Relationship

If we all had crystal balls, making the right decisions about our futures would be simple. Luckily though, you have a range of options that help protect your interests in a relationship. A de facto relationship occurs when you reach the required criteria. If you're unsure however, it's wise to consult a family lawyer. 

De facto breakups can be just as challenging as divorces and seeking professional advice means you'll know your rights. Even the most amicable of breakups can result in complicated financial or child custody situations. Legal advice will help guide you through the process. 

If you'd like advice on de facto relationships or civil partnerships, get in touch with us today. We provide expert advice so you can make the right decisions for yourself. 

Please note the content of this post is information only and not legal advice.  If you require legal advice it is best to contact one of our lawyers who can review your particular circumstances and then provide tailored advice according to your needs.

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