(Not) Married at first sight: de facto relationships explored

In Australian society today, there is an increasing number of people living in what would be legally considered to be a de facto / domestic relationship known as a “de facto relationship”. Why is it important to determine? Many de facto relationships in Australia have the same legal rights as married couples.

What is considered a de facto relationship?

Often people are unaware that they are living in a de facto relationship – which can include both same-sex and heterosexual relationships – and determining whether or not a person is in a de facto relationship can be a complicated legal question. Some factors that may be taken into account in determining whether a couple is in a de facto relationship for Australian family law purposes include:

1. How long the couple have been in a relationship
2. Whether the couple are living together and for what duration of time
3. Whether there are any children of the couple’s relationship
4. Whether the couple present themselves to the outside world as being in a relationship
5. Whether the couple are dependent or interdependent on each other financially.

The Australian family law case law has even recognised a de facto relationship’s existence where one of the parties to such a relationship may be still married to and indeed also living with another party.

Applying the legislation to de facto relationships

Many people are also unaware that under the current Australian legislative framework, the majority of people in de facto relationships will have the same legal rights and obligations as those attaching to married couples. That can include having legal rights concerning:

1. Children’s issues including:
   • Care arrangements for children
   • Child support
   • Surrogacy
   • Adoption
   • Reproductive technology
2. Property settlement – where the de facto relationship has been for two years or longer or for relationships of less than two years’ duration, where the parties’ circumstances fall within the provisions of the legislation that allow for property division claims notwithstanding the relationship enduring for less than two years.
3. Spousal maintenance.
4. The ability to enter into Financial Agreements (both prior to entering into a de facto relationship, during a de facto relationship or post-separation).

Considerations when entering or exiting a de facto relationship

Whether a person is contemplating entering into a de facto relationship or separating from their de facto partner (or at any point in between), it is important that they are aware of their legal rights and obligations which can also vary between Australian States. With the benefit of such advice, a person may be able to protect themselves from a subsequent spousal maintenance or property division claim against them by a de facto partner, should the de facto relationship subsequently end in separation.

Our experienced Family and Relationship Law Team at Gadens is able to advise and represent persons in respect of all matters arising from de facto relationships.

Authored by:

Siobhan McGee, Lawyer