A de facto relationship is generally a relationship between two people who are not legally married to each other, are not related by family and live together as a couple on a genuine domestic basis. It can involve people of the same sex or different sexes. A person can also be in a de facto relationship even if they are legally married to someone else or are in another de facto relationship.
For most Australian jurisdictions, section 4AA of the Family Law Act 1975 contains the federal definition. Western Australia has a separate family-law system for many de facto financial matters, principally under Part 5A of the Family Court Act 1997 (WA). The applicable law can depend on where the parties lived and the orders being sought, so jurisdiction should be checked before acting.
Is there a two-year rule for de facto relationships?
Two years is not a universal definition of when a de facto relationship begins. Under section 90SB of the Family Law Act, it is one of the gateway requirements for certain federal property and maintenance orders. The gateway may also be met where there is a child of the relationship, the relationship was registered under a prescribed law, or substantial contributions were made and refusing an order would cause serious injustice. Different provisions apply in Western Australia.
How is a de facto relationship established?
The existence of a de facto relationship is assessed from the circumstances as a whole. Relevant considerations can include:
- the duration of the relationship;
- the nature and extent of the parties’ shared residence;
- whether a sexual relationship existed;
- financial dependence, interdependence and arrangements;
- ownership, use and acquisition of property;
- the degree of mutual commitment to a shared life;
- whether the relationship was registered;
- the care and support of children; and
- the reputation and public aspects of the relationship.
No single factor is decisive, and a court may give each factor the weight it considers appropriate in the circumstances.
What happens when a de facto relationship ends?
After separation, the parties may need advice about property, liabilities, superannuation, maintenance and parenting arrangements. The available pathway depends on the facts, the relevant jurisdiction, applicable time limits and whether the statutory gateway requirements are met.
Property is not automatically divided equally, and legal ownership alone does not necessarily determine the final outcome. Before agreeing to a settlement, it is important to identify the asset pool, obtain proper disclosure and understand the legal effect of any proposed agreement.
When should you obtain advice?
Early advice is particularly important where there is disagreement about whether a de facto relationship existed, the parties lived in different jurisdictions, there are businesses or trusts, assets may be transferred, financial disclosure is incomplete, or a time limit may apply.
See our separation and divorce service or property settlement service for information about the next practical steps.
This article provides general information only. The law and the appropriate strategy depend on your individual circumstances and jurisdiction.