If you are in a relationship you may be wondering if your relationship would be considered a ‘de facto relationship’. It is an important distinction, if your relationship is a de facto relationship then you may need to consider legal issues relating to family law, wills and estate planning and social security law.

You should always obtain legal advice if you are unsure of your relationship status for legal purposes.

What is a de facto relationship?

You will be in a de facto relationship if:

  • You are not legally married,
  • You are not related by family, and
  • Having regard to all the circumstances of your relationship, you are in a relationship where you are living together as a couple on a genuine domestic basis.

Does having a romantic partner mean I am in a de facto relationship?

A relationship is not always a de facto relationship even if you are living together. It depends on the circumstances of your relationship. A de facto relationship can exist between two persons regardless of their sex and even if one of the persons is legally married to another person.

What are the de facto relationship criteria?

In determining whether two persons are in a de facto relationship, all the circumstances of your relationship will be taken into account, including the following:

(a) the duration of the relationship,

(b) the nature and extent of any common residence,

(c) whether or not a sexual relationship exists,

(d) the degree of financial dependence or interdependence, and any arrangements for financial support,

between the parties,

(e) the ownership, use and acquisition of property,

(f)  the degree of mutual commitment to a shared life,

(g) the care and support of children,

(h) the performance of household duties,

(i)  the reputation and public aspects of the relationship.

Whether or not you are in a de facto relationship is a determination of fact. This means that a Judge decides if you are in a de facto relationship based on the evidence you provide in relation to the above circumstances.

How long do you have to be together to count as a de facto relationship?

Most people believe there is a ‘set period’ a couple needs to live together before they are considered to be in a de facto relationship. However, there is not actually any set period for people to be together to be considered de factos. You may not even be living together in the traditional sense and still fall into the category of de factos.

However, when we are considering your family law entitlements and obligations, the Family Law Act 1975 (Cth) will not generally apply unless you meet one of these criteria:

  • your relationship was longer than two years,
  • there is a child of the relationship,
  • Where one of you made a significant contribution during the relationship and a failure to recognise this would result in serious injustice, or
  • If your relationship is registered under a prescribed law of a State or Territory.

Whether or not the Family Law Act applies may impact upon your ability to receive property settlement or maintenance at the end of your relationship.

Applying for de facto status in Australia

Most states and territories in Australia allow for a relationship to be registered.

Couples who are not married can apply to register a relationship in NSW. The relationships register provides legal recognition for a couple.

Couples in NSW can register their relationship online via the Service NSW website.

Every relationship is different. You should seek specialist advice in the event you are unsure whether your relationship is a de facto relationship.

Please don’t hesitate to contact us.

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