De facto Relationships

Published 30 Sep 2015
Liza Nguyen

Statistics show that the number of people living in de facto relationships are on the rise. For many people, cohabitation is a selection process before getting married or put another way, trying before buying. Some will be happy and go on to get married and others won’t be and will end their relationship. A good few are happy in their relationship but can’t be bothered going through with marriage. What happens for people in the latter category?

Do people who live as an unmarried couple have rights?

Yes. It is a misconception that in order to have rights on separation, two people must be married. For some time now, since 1 March 2009, people living in unmarried relationships can apply to the Family Court for relief in a similar way a married couple would under the Family Law Act under the de facto relationship provisions if two unmarried people are in a de facto relationship and the Court is satisfied that an Order should occur.

What is a de facto relationship and how is the Court satisfied?

In order to qualify, there must have been at some point a de facto relationship.

The definition of a de facto relationship is contained in the Family Law Act, which is essentially a person living with another person where they are not legally married to each other and are not related to each other by family, having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis. What does that mean?

The Court may make an Order in relation to a de facto relationship if the court is satisfied:

• that the period of the de facto relationship is at least 2 years; or

• that there is a child of the de facto relationship; or

• that a party to the de facto relationship has made a substantial contribution and a failure to make the order would result in serious injustice to that party; or

• that the relationship is or was registered.

There is no one factor that determines whether two people are living in a de facto relationship.

In working out whether or not two people have a de facto relationship, the Court will give consideration to the following circumstances:

• The length and duration of the relationship

• The nature and extent of your common residences

• Whether a sexual relationship existed

• The degree of financial dependence or interdependence of financial support

• The ownership, use and acquisition of property

• The degree of mutual commitment to a shared life

• Whether the relationship is or was registered

• The care and support of children

• The reputation and public aspects of the relationship

No two cases are ever the same but if you are unmarried and have lived together with a person and separate, do not assume that you are entitled to nothing. You should contact our family lawyers for advice on your entitlements.