Understanding the Legal Issues Involved in a De-Facto Relationship

In July 2020, the Australian Institute of Family Studies published its report Families Then & Now: Couple relationships. This report outlined some key trends regarding couple relationships in Australia. It pointed out that while the marriage rate has declined, the rate of cohabitation has increased. In 1986 6% of all couples were cohabiting, and this proportion has steadily increased across the census years to 12% in 2001 and to 18% in 2016. These relationships represent a significant and growing sector of the population and an increasing importance in family law. 

Married and de-facto relationships have largely equal standing in family law, so why does the distinction matter?

While de-facto couples can assert most of the same rights as married couples, they may need to expend significant time and money to achieve this. Key differences include:

• only marriage is immediate and easily proven. However, de-facto relationships need to be demonstrated with a body of evidence often required at times of stress, such as relationship breakdown, or grief, such as when a partner has died without a Will.
• marriage is recognised nationally and internationally, whereas de-facto relationships are not always recognised overseas, and laws can differ between states.
• marriage will usually nullify a Will, but a de-facto relationship will not.

In one particularly important respect, if a de-facto partner dies, the surviving partner has the same rights as a married person. 

What constitutes a de-facto relationship?

The laws regarding de-facto couples can differ between States and between different rights. For example, Centrelink recognises relationships the moment a couple start living together and, for establishing status under migration law, 12 months of cohabiting is usually sufficient. However, under family law, it is necessary to demonstrate a minimum of two years living together, unless the couple has a child together, have registered the relationship, or made significant contributions to the relationship.

In all situations, de-facto relationships require proof, meaning the provision of evidence of living together, child care arrangements, finances, property ownership, their commitment to a shared life and how they present themselves in public.

In essence, a person is in a de-facto relationship with another, regardless of their gender, if they are living together on a ‘genuine domestic basis’. In practice, what constitutes a de-facto relationship depends on the circumstances.  Family Courts often have to determine the matter. The outcome can have important consequences and constitute the first step in litigation.

Weldon & Levitt (2017)

In Weldon & Levitt (2017) FCCA 3072, the Court decided that the parties were not in a de-facto relationship despite a lengthy sexual relationship and having two children. Mr Weldon had made a property application. Ms Levitt claimed there was no de-facto relationship, and they were merely ‘boyfriend and girlfriend’. While they had two children together, they only lived together for less than one of the 16 years they had known each other. Although unemployed and in receipt of benefits since 2001, she had not told Centrelink that she was in a de-facto relationship.

A Court will look at the evidence and assess whether, in all the circumstances, the parties were a couple living together on a genuine domestic basis.

What happens when a de-facto relationship breaks down?

If a relationship breaks down, there is a time limit of two years from the date of separation to make an application to the Court for a property settlement. As outlined, it will normally be necessary to prove that you have lived together for two years or have a child from the relationship. The Court, in making a division, will take into account the respective financial and non-financial contributions to the relationship.

Spousal maintenance may be claimed if one partner cannot support themselves after a relationship breakdown and the other partner has the financial means to make contributions. Factors taken into consideration include age, income, financial resources, ability to work, a suitable standard of living and whether the relationship has affected the ability to earn an income. The entitlement ends if entering a new de-facto relationship or marriage.

As regards child support, a de-facto partner is entitled to support if caring for a child. Where a child will live can be decided by agreement or by application to the Court who will base their decision on the best interests of the child.

De-facto couples have the same rights to social security as if they are married.  If separated and there is a dependent child, assistance may be available.

Registering a de-facto relationship

A de-facto relationship can be registered on the NSW Relationship Register. This will provide evidence of the relationship and may provide rights for a property division even though the partners have not lived together for two years.

To register it is necessary for the couple to prove that they meet the criteria of providing ‘personal or financial commitment and support of a domestic nature for the material benefit of the other’. Registered relationships are, however, not always recognised overseas.

How can Szabo & Associates Solicitors help?

If you and your partner wish to formalise your de-facto relationship or require legal assistance to prove your relationship status, the experts at Szabo & Associates Solicitors can help. Our family lawyers bring a wealth of experience to understanding all aspects of a de-facto relationship. If you are concerned about your rights when a relationship has broken down, we can, for example:

• present a convincing de-facto case;
• obtain orders from the Court;
• provide representation in Court if required.

Contact our Family Law Solicitors in Sydney, NSW

Szabo & Associates Solicitors are a leading family law firm in Sydney providing comprehensive legal advice on all aspects of family law, including how the law treats the different kinds of relationships that a couple can have together. If you need to understand better how your relationship is treated in law and what rights you and your partner have, please contact us on 02 9281 5088 or fill in the online contact form.