Key Points
- The criteria for a court determination on a de facto relationship, if not registered, are not identical for all cases, with assessments based on individual circumstances.
- The de facto institution safeguards the rights of non-married couples, including in post-separation matters or claims arising from a partner’s death.
- Mediation is an alternative to court for resolving disputes after the breakdown of a de facto relationship.
In Australia, when two people live together as a couple, their relationship can still be recognised by law, even if they are not married.
A de facto relationship is broadly defined in the , as two persons of the same or opposite sex living together as a couple “on a genuine domestic basis”.
The process and requirements for having your relationship recognised as de facto depend on your state or territory of residence.
For example, in South Australia de facto relationships are registered under the . Once registered, this provides an automatic recognition by the law anywhere in Australia.
Lesbian couple looking at mobile phone and smiling in living room at home. Credit: eclipse_images/Getty Images
“That might assist people who are trying to get visas; in the event that a partner passes away, it also may affect them from an estate perspective to show that they were in a de facto relationship or for medical purposes if decisions need to be made for next of kin.
“And from a legal parent perspective, particularly for women in a same sex relationship, as the Family Law Act requires for the non-birth mother to be recognised as the other legal parent. Registering of the de facto relationship provides that automatic legal status.”
Having your de facto relationship registered may also make it easier to claim some welfare entitlements as a young person to show that you live independently from your parents.
Court determination of a de facto relationship
When a court is asked to work out if two people have a relationship as a de facto couple, circumstances taken into account may include:
- The duration of the relationship and its public aspects
- Whether a sexual relationship exists
- Any financial arrangements or common assets
- The degree of commitment to a shared life
The criteria upon which the decision is based are assessed on an individual case basis, with the court attaching the weight it deems appropriate to any of the circumstances present.
Ms Evans explains that two of the most common misconceptions around de facto relationships relate to the length of the relationship.
“A lot of people think that you have to be in a relationship for two years to be de facto, that's not true. And a lot of people think if you're in a de facto relationship, after two years, you're suddenly entitled to 50% of the other person's assets. Again, that's not true.”
A Young Man is Distraught and Ignoring her Muslim Girlfriend While Arguing. A Man and his Muslim Girlfriend are Having a Serious and Harsh Communication Due to the Problems They are Going Through. Credit: ProfessionalStudioImages/Getty Images
Damien Greer, a Brisbane lawyer specialising in family law, explains.
“It doesn't happen very frequently. It is more the case of where you have people who have been married, the married relationship breaks down, but no one applies to the court for divorce and one of the two moves on to a de facto relationship with someone else.”
Disputes about children from a de facto relationship that has broken down, like parenting arrangements, are dealt with by the court in the same way as they are for married couples.
De facto couples, similarly to those married, can enter into a binding financial agreement at any point during the relationship, Nicole Evans explains.
“It documents what you've both brought into the relationship. And it determines then what the agreement is of how the assets and liabilities would be split between you in the event of a separation.
A binding financial agreement can only be prepared by a legal professional.
“The lawyer has to sign a document that says they've provided you with independent legal advice on the advantages and disadvantages of entering into this type of agreement.”
Dispute resolution through mediation
Similar to married couples, de facto couples who separate can access mediation services to reach agreements on disputes concerning children and finances.
Relationships Australia WA Counsellor Fiona Bennett says mediation can help the two parties reach a fair and equitable agreement while not getting carried away by their emotions.
Post-separation, the court may also make orders about financial matters, including division of assets and partner maintenance.
Family law concept. Family Paper and hammer on the table Source: Moment RF / Rapeepong Puttakumwong/Getty Images
“You can seek leave of the court to proceed out of time. But there are other issues that you then have to address and it's much more complicated.” Mr Greer says.
Alternatively, former partners must reach a mutual agreement but also ensure the agreement is legally valid and documented.
“And the two ways of documenting it are either asking the court to make orders by consent, resolving financial matters, or you can enter into a financial agreement,” Mr Greer says.
The mediation process is voluntary. When one party initiates it, the service contacts the other person to ask if they are willing to participate.
A father is standing in the doorway of their home with his son as they say goodbye to the mother who is going to work. Credit: SolStock/Getty Images
“We want to understand whether these two people will be able to sit in the same room, or if they can't sit in the same room, can they at least communicate via a mediator?
“We screen for risk in that respect. So that we make sure that any sense of family and domestic violence or kind of coercive control is really known before the mediation process starts.”
Ultimately, the benefit of resorting to mediation for separated couples is that it allows them to resolve their disputes in an empowering manner.
“If you start in court, it becomes by default, a very adversarial and argumentative process.
An interracial married couple talks to therapist together about their life. The asian woman tried to explain how he won't listen to her. Her husband looks at the floor in embarrassment. Credit: FatCamera/Getty Images
For general information on legal matters in relationships and guidance on finding a lawyer in your state, visit , an initiative of the Law Society of NSW, with support from other law societies across Australia, including the Law Institute of Victoria and the Queensland Law Society.
For information about family relationship issues and services that can assist, visit the Australian Government’s website or call 1800 050 321.
Are you in a crisis?
Emergency call 000|Lifeline 13 11 14|National sexual assault, domestic violence counselling service 1800 737 732.
