What is a “de facto” relationship in Australia?

Lots of people have heard of de facto relationships, often as some kind of non-formal alternative to marriage. But what is a de facto relationship, why does it matter, and how do you figure out if you’re in one?

Why Should you Care if You’re In a De Facto Relationship or Not?

With the formality of marriage comes some fairly automatic protections, rights and responsibilities in the event of a relationship breakdown.

But the law recognises some relationships that are “serious” enough to warrant very similar protections, without the requirement for marriage. These are called “de facto” relationships.

So, for example, if you are going to end a relationship that has developed beyond “boyfriend” or “girlfriend” and into a de facto relationship recognised by law (but perhaps not by you), then there’s a good chance you will find yourself unexpectedly in the separation process. It’s best that you know in advance whether that’s going to happen, or you could be in for a rude shock when your ex starts asking to sell your house and split the proceeds.

Definition of a De Facto Relationship

You’ll find the official definition of a de facto relationship in the Family Law Act 1975, which basically says that it’s a relationship between two people who live together on a “genuine domestic basis”.

For obvious reasons, a de facto relationship doesn’t include people who are related or married.

As you might expect though, the concept of a “genuine domestic basis” has been tested in many different ways, which has resulted in a set of general guidelines that we can look at to figure out in most circumstances whether there is, in truth, a de facto relationship or not.

Fun Fact: “de facto” just means “in fact” – the law uses it to conclude that if something looks like a duck, walks like a duck and quacks like a duck, then it’s probably a duck.

What Determines a De Facto Relationship?

Because all relationships are different, there is no one-size-fits-all set of rules to apply when figuring out if something is a de facto relationship or not.

There are, however, some guidelines or rules of thumb that the Courts will use to assess whether or not two people are in a de facto relationship that the law will recognise as living together on a “genuine domestic basis”. Those include:

1. How long you’ve been together;
2. How you each own property and how you use it (that is, are things and land treated mainly as “ours” or “mine”?);
3. Any children of the relationship or previous relationships, and how they are cared for;
4. What the public perception of your relationship is (yes, it’s probably true that your Facebook status might be relevant to figuring out whether you are in a de facto relationship or not);
5. Whether one of you are financially dependent on the other;
6. If the relationship was sexual or not;
7. A variety of factors which might indicate whether each of you was committed to a shared life or not;
8. Is your relationship registered (many States and Territories allow you to register your de facto relationship)?

This isn’t an exhaustive list, and many factors can come into play.

But the big question is: in truth, what kind of relationship did you have and does it meet the legal test for de facto relationships or not?

What are your Legal Rights in a De Facto Relationship, Or When Ending One?

The primary question about legal rights in a de facto relationships is about separation, and the separation process.

Largely, the separation process in a de facto relationship closely resembles the separation process in marriage. Check out our article here for more about that.

The big potential risk though is that you are in a de facto relationship without necessarily thinking that you are. That might be because you haven’t really turned your mind to it, or your commitments together have increased over time without really considering the impact of those smaller decisions.

Because of the major impact that being in a de facto relationship can have on separation, it’s really best to have “the talk” with your partner if you need to sooner rather than later. If you’re not sure where things stand legally, then of course you can get advice.

But beyond separation, being in a de facto relationship can have an impact on your estate planning, your will, your superannuation, and your rights generally if your partner dies.

It’s a good idea to have a clear understanding of your situation.

Practical Ways to Prove you are In a De Facto Relationship (or: what IS a de facto relationship in real life)

Here are a few questions you can ask, practically, to help you get a general feel for whether you might be in a de facto relationship:

• Do you live together?
• Do you have joint bank accounts?
• Do you own shared property or have shared debt?
• Have you provided for each other in your will?
• Have you been together for longer than two years?
• Do you have children together, or do you look after children from a former relationship as if they were your own?
• Do you always both get invited to parties or functions as a couple?
• Do either of you look after the other financially (ie – would one of you struggle financially if you separated)?
• Do you have a regular sexual relationship?
• Have you done any long term planning for the future together (finances, property, travel, children or the like)?

If you answered “yes” to some of these (or even one of these in some cases) there’s a chance you might be in a de facto relationship.

Like we’ve said though, it’s not always an easy question to answer, but it’s an important one. So if you need some proper guidance about your individual situation, it’s best to reach out for advice.