Am I in a De Facto Relationship?

First published November 2nd, 2020 and updated July 7th 2021

Am I in a De Facto Relationship? This is a very common question we’re asked by our clients.

Many Australian couples may be unaware that they are in a de facto relationship nor understand the legal implications of de facto relationships.

Unlike marriage, where formal documents specify what day the parties were married, this documentation is usually non-existent for de facto relationships. On top of this, there’s a lot of misinformation out there. A common misconception you may have heard is that a de facto relationship exists if you have lived together for two years or more.

Knowing when a relationship is legally considered de facto in nature is made even more confusing given that different Australian agencies such as Centrelink or the Department of Immigration apply different rules in classifying de facto relationships.

So what exactly is a de facto relationship for family law purposes and how do you know if you’re in one?

To answer this burning question – Am I in a De Facto Relationship? We must legally define a de facto relationship in Australia.

De facto Relationship Definition

The Family Law Act 1975 (Cth) defines a de facto relationship as one between two people (whether of the same or opposite sex) who are not legally married or related by family and who, having regard to all of the circumstances of their relationship, live together on a genuine domestic basis.

So what does a genuine domestic basis mean?

The definition of “genuine domestic basis” is very broad. The court will consider many factors when deciding whether a couple live together on a genuine domestic basis. This is because relationships take many different forms, and arrangements are not always straightforward. It is even possible for a de facto relationship to exist between parties even if one party is legally married to, or in a de facto relationship with, outside parties.

Some of the factors the court considers in assessing whether parties live together on a “genuine domestic basis” include:

• The duration of the relationship;
• The nature and extent of a common residence; (e.g. Does the couple live together? How long have they lived together?)
• Whether the parties had a sexual relationship (e.g. How frequent is the sexual relationship? Is the sexual relationship mutually exclusive?)
• Whether there are any children of the relationship;
• The degree of financial dependence or interdependence (e.g. Do they share a joint bank account, credit cards, or loan and mortgage repayments? Is one person financially supported by the other? What household expenses are shared?)
• The ownership, use and acquisition of their property;
• The degree of a mutual commitment to a shared life; (e.g. Are meals shared together? Is communication frequent? Do they regularly spend time together? Do they plan for the future?)
• The reputation and public aspects of the relationship (e.g. Do they socialise together? Go to each other’s family events, travel overseas together?)
• Care arrangements for any children;
• Declarations of the relationship to authorities such as the ATO or Centrelink.

The above list is not exhaustive and merely represents some of the factors that the Court may consider when making a determination as to whether a de facto relationship existed.
There is no specific factor which the court necessarily gives more weight than any other. All relationships are different, which means there is no one-size-fits-all set of rules to apply. Each case will be examined on its own unique situation as to whether a de facto status exists.

What Evidence Does the Court Require to Prove / Disprove a De Facto Relationship?

Your evidence, the detail you include and how you present it is critical in determining if a relationship is de facto or not. This is why it’s essential to speak to a separation lawyer for the correct legal advice and representation. As a guide, the court may use the following evidence to make a decision as to whether a de facto relationship exists.

• Communication between the parties – text messages, emails, letters, birthday cards etc.
• Statements from friends and family about the relationship;
• Photos of the couple at public events and on social media;
• Bank account statements;
• Tax returns;

Why Is Knowing if You Are in a De Facto Relationship Important?

If you are in a de facto relationship, you (or your partner) may be entitled to make a property claim following the breakdown of the relationship. Similar to married couples, de facto relationships have usually built up common assets over the time they were together. As a result, de facto relationships have similar legal rights and responsibilities to marriages.

Since many people are unsure if they are in a de facto relationship or not, there is a lot of uncertainty around what each person is entitled to following the breakdown of the relationship. In some cases, failure to determine if you are in a de facto relationship can mean you do not receive what you are entitled to.

On the other hand, there can be significant consequences for a party who may not have considered they were in a de facto relationship. Failure to classify the relationship may mean no legal agreements were entered into. So if the relationship ends and the other party seeks an order for maintenance or a property settlement, there are no protections in place.

How Can a Family Lawyer Help?

Whatever stage you are at in the relationship, it’s worthwhile to seek legal advice. A family law expert will be able to provide advice on all aspects of family law as it relates to your de facto relationship, including the advantages or disadvantages to entering into a binding financial agreement during the relationship. At Sage Lawyers, our team of experienced separation lawyers can help with all parts of the process.

If you are just starting out in a relationship, a family lawyer can advise you on the legal implications of a de facto relationship and the options you have to protect your assets in a de facto relationship, such as entering into a binding financial agreement.

In the instance that you are already in a relationship and not sure if it’s de facto or not, we can discuss your relationship and any legal concerns or queries you may have. If your relationship has ended, we can advise if your relationship meets the criteria for a property claim in Court.

If you have any queries about de facto relationships or would like further information, please contact Sage Family Lawyers on (03) 9070 9839 or info@sagefamilylawyers.com.au for a confidential, obligation-free chat.

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