De Facto Relationships

What is a de facto relationship?

Australian law recognises that a de facto relationship may exist if two people:

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

The factors to be considered when determining if a de facto relationship exists (or existed) include:

  • how long the couple have been together in their relationship
  • if the relationship is sexual in nature
  • the degree of financial dependency
  • the degree of a mutual commitment to a shared life
  • whether the relationship is registered in an Australian state or territory
  • the ownership and use of property
  • the care and support of children
  • the public aspects of the relationship

You can be in a de facto relationship while married to someone else. You can also be in more than one de facto relationship at the same time.

Although a de facto relationship usually needs to have existed for at least two years to be considered one, there are some exceptions. We recommend that you talk to us for advice specific to your situation.

The legal relevance of a de facto relationship

The legal recognition of a de facto relationship is necessary to access certain remedies for a financial settlement under family law legislation in the event of a break up.

If you are in a de facto relationship, it may be assumed that you have the same legal rights and responsibilities as married couples, and you should also consider the implications of these rights and responsibilities as they apply to your circumstances.

For example, if a de facto partner dies, then the surviving partner is usually entitled to a significant share of the deceased partner’s estate. This may mean that your children from a previous relationship are unintentionally precluded (or limited) from benefiting from your estate.

While recognition of a de facto relationship in Australia has been a major step in acknowledging the rights of less traditional relationships, it is important for de facto partners to understand their legal status and plan to prevent unintended consequences arising from their relationship should certain events occur.

Protecting your assets

Some de facto couples choose to make a binding financial agreement to set out how their property is divided if their relationship breaks down. When validly prepared, a financial agreement can prevent either partner from claiming a larger share of assets than determined under the agreement if they separate. Financial agreements are often used where couples form a new relationship but have children from a former relationship. They can also help to protect a partner’s children’s inheritance from potential family provision claims.

All relationships are different and plans should consider the needs of each partner and their respective financial circumstances. It is wise to look into these matters while a relationship is going well, rather than after it breaks down.

If you have a domestic partner but are not married, our lawyers can explain the legal effect of your relationship and assist in planning the division of your assets should your relationship end. We can also guide you through a property settlement if your de facto relationship has ended.

If you need any assistance contact one of our lawyers at mail@smythfamilylaw.com.au or call 02 7202 2137 for a no-obligation discussion and for expert legal advice.