What is a De facto Relationship?
A de facto relationship is when two people live together as a couple but are not legally married. In Australia, de facto couples have many of the same legal rights as married couples under the Family Law Act 1975.
When Does a De facto Relationship Exist?
The Family Court considers several factors:
Key Indicators
- Living Together: You share a home and live together
- Financial Aspects: Shared bank accounts, property, or financial support
- Sexual Relationship: You have an intimate relationship
- Commitment: You’re committed to a shared life together
- Public Perception: Others see you as a couple
Duration Requirements
Generally, the relationship must have lasted:
- 2 years or more (most common requirement)
- Any duration if you have a child together
- Any duration if substantial contributions made
- Registered relationship in states that allow registration
De facto Rights by State
While federal family law applies to most de facto matters, state laws also play a role:
All States and Territories
- Property division under Family Law Act
- Superannuation splitting
- Spousal maintenance
- Parenting matters
State-Specific Rights
NSW, VIC, QLD, TAS:
- Relationship registration available
- Additional state-based property rights
- Inheritance rights under intestacy laws
SA, WA:
- Own state-based relationship laws
- May offer additional protections
Property Rights in De facto Relationships
What Property Can Be Divided?
Relationship Property:
- Real estate (houses, land)
- Cars and vehicles
- Bank accounts and savings
- Investments and shares
- Business interests
- Superannuation
- Household items and furniture
- Pets (considered property)
How is Property Divided?
Courts use the same four-step process as for married couples:
Step 1: Identify and Value Assets
List everything owned by either party:
- Solely owned property
- Jointly owned property
- Property acquired during relationship
- Property owned before relationship
Step 2: Assess Contributions
Financial Contributions:
- Income and wages
- Savings brought into relationship
- Gifts and inheritances
- Purchase of property
Non-Financial Contributions:
- Homemaking and domestic duties
- Childcare
- Home improvements and renovations
- Supporting partner’s career
Step 3: Consider Future Needs
- Age and health of each party
- Income and earning capacity
- Care responsibilities for children
- Financial resources and liabilities
- Standard of living
Step 4: Just and Equitable Division
The court determines what percentage split is fair.
Superannuation Splitting
De facto couples can split superannuation just like married couples:
Requirements
- Relationship lasted at least 2 years, OR
- Child of the relationship exists, OR
- Substantial contributions made
How It Works
Options:
- Splitting order: Divide super at separation
- Flagging order: Prevent access until resolved
- Payment from split: Receive portion when payable
Spousal Maintenance
One partner may be required to financially support the other after separation.
When is Maintenance Payable?
If one party:
- Cannot adequately support themselves
- Other party has capacity to pay
- Relationship circumstances warrant it
Factors Considered
- Age and health
- Income and earning capacity
- Care of children
- Standard of living during relationship
- Length of relationship
Proving a De facto Relationship
If your relationship is disputed, you may need to provide evidence:
Documentation
- Joint lease or mortgage
- Shared bills and accounts
- Joint tax returns
- Beneficiary nominations
- Joint purchases
- Photos and correspondence
Witness Statements
- Family members
- Friends
- Colleagues
- Neighbors
De facto Relationship Agreements
Protect yourself and your partner with a de facto agreement (Binding Financial Agreement):
What Can Be Included?
- Property division if you separate
- Financial arrangements during relationship
- Spousal maintenance
- Who keeps what property
- Debt responsibilities
Legal Requirements
For a binding agreement:
- Each party must receive independent legal advice
- Lawyers must provide certificates
- Agreement must be in writing and signed
- Must meet formal requirements
Children from De facto Relationships
Children have the same rights whether parents are married or de facto:
Parenting Arrangements
- Parenting plans and consent orders
- Child support obligations
- Parental responsibility
Child Support
- Administered by Services Australia
- Based on income and care arrangements
- Not affected by property division
Common Misconceptions
”We’re Not De facto Because…”
Myth 1: “We haven’t lived together for 2 years”
- Reality: If you have a child together, duration doesn’t matter
Myth 2: “We keep our finances separate”
- Reality: Financial independence doesn’t prevent de facto status
Myth 3: “We’re only living together to save money”
- Reality: Financial reasons don’t negate a relationship
Myth 4: “I moved out, so the relationship ended then”
- Reality: Separation date requires actual relationship breakdown
What Happens When a De facto Relationship Ends?
Time Limits
You have 2 years from separation to apply to court for property division or spousal maintenance.
Important: This deadline is strict. After 2 years, you need court permission to proceed.
Options for Resolution
- Informal Agreement: Write down your agreement
- Binding Financial Agreement: Legally enforceable under Family Law Act
- Consent Orders: Apply to court for orders by agreement
- Court Application: Let court decide if you can’t agree
Tax Implications
Capital Gains Tax (CGT)
- Transfers may be CGT-exempt if due to relationship breakdown
- Time limits apply (must transfer within certain period)
- Consult tax advisor
Centrelink and Benefits
- De facto status affects eligibility
- Income and assets tests consider both partners
- Must notify Centrelink of relationship changes
Interstate and International De facto Relationships
Interstate Relationships
- Federal family law applies across Australia
- Some state differences in recognition
- Generally transferable
International Recognition
- Some countries don’t recognize de facto relationships
- May affect immigration status
- Seek legal advice for overseas matters
Protecting Your Rights
During the Relationship
- Keep records of contributions
- Document major purchases
- Consider a de facto agreement
- Update beneficiary nominations
- Make a will
At Separation
- Document the separation date
- List all assets and debts
- Keep evidence of contributions
- Seek legal advice early
- Don’t miss the 2-year deadline
When to Seek Legal Help
Consult a family law solicitor if:
- Significant assets are involved
- Relationship status is disputed
- Partner is hiding assets
- Complex business or super matters
- Considering a binding agreement
Conclusion
De facto couples in Australia have substantial legal rights and protections. Understanding these rights is essential whether you’re entering a relationship, living together, or separating.
Need legal documents for your de facto relationship? Explore our de facto templates including relationship agreements and property settlement documents.
Disclaimer: This article provides general information only and is not legal advice. De facto relationship matters are complex and vary by circumstance. Consult with a qualified family law solicitor for advice specific to your situation.