What’s The Definition Of A De Facto Relationship In Australia?

by Brampton Keats | 3 min read

Confused about the definition of a De Facto relationship in Australia? The answer isn’t always black and white. This article will help you assess whether you are in a de facto relationship or not.

What Is A De Facto Relationship?

The definition of a de facto relationship in Australia is when two partners are living (or have lived) together on a “genuine domestic basis”. You can be from the same or opposite sex and must not be married or related to each other.

There are many factors that determine whether you are living together on a genuine domestic basis. The easiest way to think about it is whether you have been living together in a ‘marriage-like’ way. There is no rule with regards to minimum amount of time spent living together or in a relationship. However it is generally accepted that living together on a “genuine domestic basis” for a minimum period of 2 years qualifies as a de facto relationship (though exceptions do apply).

If you want a quick definition – ask yourself this question:

“Have we been living together in a ‘married-like’ way for at least two years?”

The law is vague and as such exceptions do apply – however this is a pretty good rule of thumb. How to assess whether you are living on a ‘genuine domestic basis’ is discussed further on.

If you are currently going through a de facto breakup, we suggest you arrange a de facto separation agreement

The Legal Definition Of A De Facto Relationship

De facto relationships are defined in Section 4AA of the Family Law Act 1975

According to this act, you are in a de facto relationship if:

  1. you are not legally married to each other
  2. you are not related by family
  3. you have a relationship as a couple living together on a ‘genuine domestic basis’

You do not need to register your de facto relationship – it automatically applies when two people meet the above criteria.

How To Assess Whether You Are Living Together On A ‘Genuine Domestic Basis’

As you can see from the legal definition above, ‘living together on a genuine domestic basis’ is the key phrase in determining whether you are in a de facto relationship or not.

In order to determine whether you have been living together on a ‘genuine domestic basis’, the courts will look at a range of factors such as:

  • The duration of your relationship
  • Your living arrangements together
  • How your finances are arranged – the degree of financial dependence and interdependence
  • Whether a sexual relationship exists
  • The way you present your relationship in public
  • The degree of mutual commitment to a shared life
  • Whether you own property together and how you have bought it
  • Whether your relationship is registered with the state
  • Whether you have or care for children together

It is worth noting that none of these factors is a necessary requirement [Section 4AA(3)] and other factors may also be taken into account [Section 4AA(4)]

What States Does This Definition Apply To?

This applies to all states and territories in Australia, with the exception of Western Australia. The reason being that all states except WA have referred their powers to the Commonwealth (Family Law Act 1975) in relation to dealing with property and maintenance issues after the breakdown of a de facto relationship. So if you are from NSW, QLD, SA, NT, ACT, Tasmania or Victoria, this definition will apply to you.

Time Required For A De Facto Relationship – How Long?

As mentioned above, the duration of your relationship is a factor in determining whether you are in a de facto relationship or not. There is no set rule of time for this. However, you will usually need to demonstrate you have lived together for at least two years.

There are exceptions to this rule – for example if you have a child from your relationship.

Can Same-Sex Relationships Be Recognised As De Facto?

Yes. Australian law does not discriminate between heterosexual or homosexual relationships. This means a de facto relationship can exist between 2 people of the opposite sex, or between 2 people of the same sex. For the reasons above, this may not apply in Western Australia.

Should We Register Our De Facto Relationship?

Registering your de facto relationship is not essential, and most people don’t. However if you are unclear on whether you fall within the de facto relationship definition and want to register as proof of existence, you certainly can.

Your Rights And Entitlements

If you are in a de facto relationship – you have similar legal rights and responsibilities to those of married couples. For more information about your entitlements and what happens after a de facto separation – read our in depth article on de facto rights and entitlements

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ABOUT BRAMPTON KEATS

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