Your Rights In A De Facto Relationship – Everything You Need To Know

A de facto relationship is outlined in s 4AA of the Family Law Act (Cth) and outlines that a de facto relationship is present where two people:

  • Are not legally married to one another;
  • Are not related by family; and
  • With reference to all surrounding circumstances of the relationship, they have a relationship as a couple living together on a genuine domestic basis.

Essentially, this means that a de facto relationship will be determined to be valid where two people are in a relationship, not married and have been living together as a couple.

Who can be considered a party to a de facto relationship?

The Act provides that a de facto relationship can exist between two people of the same sex and two people of the opposite sex.

Further, a de facto relationship can exist even where one of the persons to the relationship is legally married to a third party or is in another de facto relationship.

What is a Genuine Domestic Basis?

While no definition has been provided for what constitutes a ‘genuine domestic basis’, the Court will consider the following to determine this:

  • The duration of the relationship and how long the parties lived together;
  • Whether a sexual relationship was present;
  • Whether there was a sharing of finances or where one party relied upon the other financially;
  • The use and ownership of property;
  • The degree of mutual commitment to a shared life;
  • Whether the relationship is or has been registered under a prescribed law;
  • If there is a child to the relationship and any caring arrangements in place;
  • The reputation and public perception of the relationship.

Applying to the Court for De Facto Financial Disputes

In Queensland, the parties in a recognised de facto relationship which has broken down, can apply to the Court to have their financial matters determined in the same manner married couples do.

However, financial orders must be applied for with two years of the breakdown of the relationship. If an application is not made within this time, parties will be considered out of time and will need the Court’s permission to apply.

Prior to a determination being made, the Court must be satisfied of the following criteria:

  • Parties were in a genuine de facto relationship which has since broken down;
  • You meet one of the following gateway criteria:
  • The de facto relationship lasted for a period of at least 2 years;
  • There is a child in the de facto relationship;
  • That the relationship is or was registered under a prescribed law of a State or Territory; or
  • When assessing property matters, it is recognised that significant contributions were being made by one party and the failure to issue an order would result in a serious injustice.
  • You have a genuine connection to the participating jurisdiction you wish to have the financial matter heard; and
  • The relationship broke down after 1 March 2009.

It is recommended that parties obtain legal advice prior to the filing of an application to ensure your circumstances satisfy the criteria outlined above.

Applying to the Court for De Facto Parenting Disputes

Parenting Disputes of de facto relationships are determined in the same manner as those of their married counterparts. The two-year minimum living arrangement as stipulated above need not be met if there is a child to the relationship.

Financial contributions will remain to be applicable in parenting disputes:

  • Child support may be payable to the other parent for the care of dependent child/ren.
  • If either party has reduced work hours or given up work to care for the child, spousal maintenance may be ordered to ensure the caring parent has the necessary financial support required.

Final Thoughts

If you are unsure whether the relationship between you and your formal partner would constitute a de facto relationship, please contact our office for a free initial 30-minute consultation with one of our experienced senior Family Lawyers.