De Facto Relationships and Family Law

In Australia, de facto relationships are legally recognised under family law, providing de facto partners with many of the same rights as married couples when it comes to property settlement, parenting arrangements, and financial support. However, there are important legal distinctions and requirements that de facto couples must meet to access these rights.

At Craigieburn Lawyers, we often receive questions from de facto partners who are unsure about their legal standing in the event of separation. This article explores the legal rights of de facto couples and how they compare to those of married couples under the Family Law Act 1975 (Cth).

What Is a De Facto Relationship Under Australian Law?

A de facto relationship is a relationship between two people who are not legally married but live together as a couple on a genuine domestic basis. De facto relationships can be heterosexual or same-sex and are recognised under Australian family law.

Under the Family Law Act 1975, a relationship is considered de facto if the couple has lived together on a genuine domestic basis, they are not legally married, they are not related by family, and the relationship has existed for at least two years. However, a relationship of less than two years may still be considered de facto if the couple has a child together or one partner has made significant financial or non-financial contributions to the relationship.

If these criteria are met, de facto partners can apply for legal entitlements similar to those of married couples after separation.

Legal Rights of De Facto Couples

Property Settlement

De facto partners have the right to apply for property settlements under the same legal principles as married couples. However, they must first establish that they were in a legally recognised de facto relationship. The court considers financial contributions such as income, assets, and property ownership, as well as non-financial contributions such as homemaking and child-rearing. The future needs of each partner, including age, health, and earning capacity, are also assessed.

De facto couples must apply for property settlements within two years of separation. If this deadline is missed, they need to seek special permission from the court to apply.

Parenting Arrangements and Child Support

For de facto couples who have children, the same laws apply as those governing married parents. If parents separate, they are encouraged to agree on parenting arrangements informally or through mediation. If an agreement cannot be reached, either parent can apply for parenting orders through the Family Court. Both parents also have a legal obligation to financially support their children, which applies regardless of their marital status. Child support can be arranged through Services Australia (Child Support Agency) or through private agreements.

Spousal Maintenance

A de facto partner may be entitled to spousal maintenance if they are unable to support themselves financially after separation. The court considers factors such as each partner’s income, financial capacity, health, age, and care responsibilities. Spousal maintenance claims for de facto couples must be made within two years of separation.

Superannuation Splitting

De facto partners have the right to apply for superannuation splitting as part of a property settlement, just like married couples. Superannuation is considered part of the property pool and can be divided by court order or agreement.

Wills and Estate Claims

A de facto partner is entitled to claim a share of their partner’s estate if they pass away without a will. However, proving the relationship can be more challenging for de facto partners compared to legally married spouses, particularly if family members dispute the relationship’s legitimacy. Having a registered de facto relationship through Births, Deaths and Marriages in Victoria can strengthen a claim.

Proving a De Facto Relationship

Unlike marriage, which is easily proven with a marriage certificate, de facto relationships require evidence. If a dispute arises about whether a relationship qualifies as de facto, the court will consider factors such as the duration of the relationship, whether the couple lived together and shared household expenses, financial interdependence (joint accounts, shared bills, or property ownership), and the public recognition of the relationship. Evidence may also include whether the couple had children together and whether they were socially recognised as a couple.

A registered relationship can provide stronger legal recognition and make legal proceedings easier in the event of separation or a legal claim.

Key Differences Between De Facto and Married Couples

Although de facto relationships and marriages share many legal rights, there are still some key differences. Property settlements for de facto couples require proof of the relationship, whereas for married couples, this is automatically assumed. Parenting orders and child support obligations apply equally to both types of relationships. Spousal maintenance is also available for both de facto and married partners, but de facto couples must apply within two years of separation.

Superannuation splitting is available for both groups, and inheritance rights apply, but de facto partners may need to provide additional proof of the relationship. One major difference is that married couples require a formal divorce process to legally end their marriage, whereas de facto couples can separate without needing court involvement unless legal disputes arise.

What to Do If a De Facto Relationship Ends

If a de facto relationship ends, it is essential for both partners to seek legal advice about their entitlements regarding property, children, and financial support. The first step is to negotiate a property settlement, either informally or through mediation. If an agreement cannot be reached, an application can be made to the Family Court. Parents must also finalise parenting arrangements through negotiation or by applying for parenting orders if needed. If one partner requires financial support after separation, they may be eligible to apply for spousal maintenance, but the claim must be made within two years. It is also important to update wills and beneficiaries to reflect the end of the relationship and ensure assets are protected.

How Craigieburn Lawyers Can Help

At Craigieburn Lawyers, we specialise in de facto relationship matters and can assist with proving de facto status, negotiating property settlements and financial agreements, applying for parenting orders or child support arrangements, handling spousal maintenance and superannuation claims, and ensuring your legal rights are protected under family law.

Whether you are entering, living in, or separating from a de facto relationship, our experienced family law team is here to provide expert legal guidance.

For personalised legal advice on de facto relationships and family law, contact Craigieburn Lawyers today.