What is a de facto relationship?
Under s 4AA of the Family Law Act 1975 (Cth), a person is in a de facto relationship with another if they have a relationship “as a couple living together on a genuine domestic basis”. This legal definition is intentionally broad and flexible, which allows the courts to recognise a wide range of relationship dynamics, but it also means that no single factor will be conclusive on its own.
How long do you need to be together?
There is a common belief that a couple must live together for at least two years for their relationship to be legally recognised. While duration is one consideration, it's only part of the equation. In fact, the Court can recognise shorter relationships where for example, there is a child of the relationship.
Key factors the Court considers
When deciding whether a de facto relationship exists, the Court must look at the totality of the relationship. This is sometimes called the “composite picture” test, as described in Lynam v Director-General of Social Security (1983). The Court considers many factors, including:
- The length of the relationship;
- Whether the couple lived together and the nature of that shared residence;
- The existence of a sexual relationship;
- The degree of financial interdependence, such as joint bank accounts or shared expenses;
- Ownership, use and acquisition of property;
- Commitment to a shared life, including future plans;
- The care and support of children;
- How the relationship was presented publicly – did they hold themselves out as a couple?
Not all of these factors need to be present, and the court’s task is to assess the relationship as a whole to determine whether the parties had a relationship as a couple living together on a genuine domestic basis.
Living together does not automatically make a couple de facto under the law. Likewise, maintaining separate finances or residences does not necessarily mean you aren't. The legal test focuses on the overall nature of the relationship, and the Court will look at the objective evidence, rather than the subjective intentions of each party. Because of this, parties should keep records that reflect the nature of their relationship such as joint lease agreements, shared bills, travel history, or communications about financial matters. This can become critical if a dispute arises.
Why does it matter?
Being classified as having been in a de facto relationship is not just a label, it can have significant legal consequences. If the Court declares a de facto relationship existed (under s 90RD of the Family Law Act 1975 (Cth)), it then has jurisdiction to make orders relating to property settlement and spousal maintenance under ss 90SM and 90SE respectively.
This can be a critical step for someone seeking to protect their financial interests after a separation or to assert their entitlements to shared assets.
How is this different from divorce?
In many ways, the financial consequences of ending a de facto relationship mirror those that apply to divorce. However, unlike married couples, de facto partners must first prove that their relationship meets the legal definition before they can seek financial orders. That initial step can be a hurdle, especially where the relationship was short or not publicly acknowledged.
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When should you seek legal advice?
Even if you're still in the relationship, it can be worthwhile to seek legal advice early especially if you're buying property together, having children, or merging finances. Early advice can help protect both parties and avoid costly disputes. If you’ve recently separated or are thinking about it, getting prompt legal guidance can help you understand your rights and obligations before making major decisions.
It is important to note there is a strict two-year time limit to bring an application for property settlement or spousal maintenance after the end of a de facto relationship. If you miss this window, you may need special permission from the court to proceed, which is not always granted.
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Can you protect yourself in advance?
De facto couples can enter into a Binding Financial Agreement (BFA) at the start, during, or after their relationship, which sets out how property and financial matters will be managed in the event of separation. This can provide clarity and avoid costly litigation later on.
How we can help
At Carew Counsel Solicitors, we assist clients in navigating the complexities of de facto law every day. Whether you’re unsure if your relationship qualifies, need advice on property division or spousal maintenance or support, or simply want to know where you stand, we’re here to guide you through the process.
