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

Under the Family Law Act 1975 (Cth) persons are in a de facto relationship if:

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

Several factors are considered in establishing these criteria including the duration of the relationship, the common residence, the existence of a sexual relationship, financial dependence or interdependence, ownership of assets, mutual commitment, care and support of children and the perception of the relationship. The Act recognises same sex couples.

Parties to a de facto relationship may have property matters determined by the Family Court provided that:

• The period of the relationship was at least 2 years; or
• There is a child of the relationship; or
• The relationship is registered under State or Territory legislation; or
• Significant contributions have been made by one of the parties and the failure to issue a property order would result in a serious injustice.

A de facto relationship allows parties to apply for similar remedies from the Family Court as are available for married couples. Matters concerning children of a de facto relationship are also dealt with by the Family Court – refer to our information on ‘Children’s Matters’.

Any proceedings for property adjustment must be commenced within 2 years of the de facto relationship ending.

The legal relevance of a de facto relationship

If you are in a de facto relationship, it may be assumed that you are subject to the same rights and responsibilities applicable to married couples. Consider whether this is appropriate in 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 might mean that your children from a previous relationship are unintentionally precluded (to the extent you would like) from benefiting from your estate.

The recognition of a de facto relationship under the Family Law Act has been a major step in acknowledging the rights of less traditional (i.e. non-spousal) relationships. It is important however that de facto partners are aware of their legal status and can plan to prevent unintended consequences arising from their relationship.

Some de facto couples choose to make a financial agreement to set out how their property is divided if their relationship breaks down, thus ousting the jurisdiction of the Family Court. This is common for couples who are in a new relationship but have children from a former relationship. The financial agreement may also protect a partner’s children’s inheritance from potential family provision claims.

All relationships are different and plans need to take into account the respective needs of the partners and their financial circumstances, whilst understanding the impact that the law would otherwise have on a de facto relationship. It is wise to consider these matters whilst a relationship is sound rather than after it breaks down.

Our Lawyers can explain the legal effect of your relationship and help you and your partner plan ways to ensure that your property is divided or left as you intend.