De Facto Relationships
When a de facto relationship breaks down, property settlement and child custody and
maintenance issues are governed by the Family Law Act 1975 in all Australian states and
territories except for Western Australia. For de facto relationships in Western Australia,
the relevant legislation is the Family Court Act 1997.
Section 4AA of the Australian Family Law Act 1975 and section 13A of the Interpretation
Act 1984 in Western Australia describe a defacto relationship as one in which a couple
lives together on a genuine domestic basis. This applies to different sex or same sex
relationships. If you have been legally married to each other, or are related by family, then
it is not a de facto relationship. If one party is legally married, they can still be
considered to be in a de facto relationship with someone else.
As a general rule most relationships aren’t considered to be de facto unless the couple
has lived together for two years without separation. However, there are exceptions, such as if
there are children, or there has been a substantial contribution to property.
Factors that determine the existence of a de facto relationship
A de facto relationship may arise between people of the same or of the opposite sex.
Factors which are considered when determining whether or not a couple is, or has been, in
a de facto relationship include: • the duration of the relationship
• whether there was a sexual relationship • the financial dependence of a party
• the degree of mutual commitment to a shared life
• the ownership and use of property • the care and support of children, and
• the reputation and public aspects of the relationship.
There is no clear formula to establish a defacto relationship but each case is examined
individually and the specific circumstances of the relationship taken into consideration.
You can also be considered to be in more than one de facto relationship.
Registering a de facto relationship Most states allow you to register a de facto
relationship through the Registry of Births, Deaths and Marriages. This provides you with
a certificate which can be used as proof of the relationship and how long you have been
together. This also may create rights for property division even though you may not
have lived together for two years. Property settlement at the breakdown of a
de facto relationship Upon the breakdown of a de facto relationship,
there are three ways to sort out how to divide property:
• by agreement without court involvement • by agreement formalised by the Court through
an application for Consent Orders, or • by application to the Court for orders.
The Courts can make an order for the division of any property that you own together or separately.
They may also order a split of any superannuation, or that one party pay spousal maintenance.
The net asset pool will include anything acquired before, during, or after separation. It does
not matter whether the property was owned jointly or individually. When determining
a property settlement, the Court evaluates the types of contributions – financial and
non-financial – made by either person, as well as their future needs.
Before you can make an application to the Courts you need to ensure that:
• your de facto relationship lasted for at least two years
• there is a child or children of the relationship • you made substantial financial or non-financial
contributions to the other person’s property • serious injustice would be caused to a
homemaker or parent if property was not divided, or
• the de facto relationship was registered in a state or territory.
The Court will not make an order unless they consider it just and equitable to do so.
Applying to the court In Western Australia, if you have been in
a de facto relationship, you need to apply to the Family Court of Western Australia to
resolve issues relating to children or property. In all other Australian states and territories,
you can apply to either the Family Court or the Federal Circuit Court where your family
law matters will be determined in the same manner as for a married couple getting divorced.
Ordinarily, application should be made to the Federal Circuit Court unless the matter
involves issues such as: • international child abduction or international
relocation • specialised medical procedures for a child
or children • contravention of parenting orders
• serious allegations of the sexual or physical abuse of a child or children, or serious controlling
family violence, or • complex questions of law.
In all states and territories, you must apply for financial orders within two years of separation
from your de facto partner. Otherwise you will need to seek leave from the Court to
apply. Death of a de facto partner
If you are in a de facto relationship and your partner dies, then you have the same
rights as a married person. This may entitle you to:
• a share of an estate where no will exists (where your partner has died ‘intestate’)
• challenge the will if not adequately provided for
• receive compensation under workers compensation law if your partner dies during the course
of employment, and • claim social security. What to do next
If your de facto relationship is breaking down, or if you have already separated, it
is important to obtain legal advice quickly. Go To Court Lawyers operate a Legal Hotline
on 1300 636 846 where you can talk directly to a lawyer from 7am to midnight, 7 days a
week. Your call will be treated with the strictest confidentiality and without judgement.
The lawyer will assess your matter and recommend a course of action.
Should you need a Court lawyer, even at very short notice, the Legal Hotline staff will
be able to arrange one for you. You can also request a call back via the website gotocourt.com.au
and a lawyer will call you back to assess your matter.