De Facto Relationships

A de facto relationship describes two people (including same-sex) who aren’t married but have lived together as a couple for at least two years without separation.

You do not have to register your de facto relationship by law. However, if you do register the relationship, you will receive a certificate of proof of the relationship. This will be beneficial if you ever need to go to Family Court, as proof of the relationship will grant you access the to court and shorten the overall court process.

If you are ending a de facto relationship, it is always beneficial to seek legal advice, particularly if children and joint property assets are involved. To end a de facto relationship, you do not have to deregister your relationship or receive a separation certificate, all you need to do is inform your partner. However, if you cannot come to an agreement, you can proceed through mediation or court proceedings to formalise a separation agreement that the court considers ‘just and equitable’ to both parties.

De facto relationships can be registered in Queensland, New South Wales, Australian Capital Territory, Tasmania, Victoria and Norfolk Island. There is no registration system for de facto relationships in Northern Territory, Western Australia and South Australia.

De facto couples are granted many of the same legal rights as married couples. Under the Family Law Act 1975, de facto couples are entitled to make prenuptial agreements regarding their property and other assets.

If your de facto relationship has ended and a separation agreement cannot be reached, both parties can apply to the court for a property settlement and, if you have shared children, you can apply for a child custody agreement. Regarding children, you and your partner will need to make a formal agreement over custody.

If you cannot come to an agreement, you should commence a court proceeding to determine the split of property. The court will consider a variety of factors relevant to your situation that will result in a fair outcome for both parties.

The arrangement that will be in the best interest of the child is considered foremost. A child custody arrangement will determine who the child lives with, who makes the primary decisions for the child and who the child spends time with. This can be settled between the parents, but if an agreement cannot be reached, the matter will be resolved through the Family Court.

If you and your de facto partner have separated and can’t agree who gets what property, the court will make an order on your behalf and divide property in a fair and reasonable manner, based on the specifics of the individual de facto relationship and future needs of the parties.

If your de facto partner has passed away, where no Will exists, you have rights and entitlements to a share of the estate. If a Will does exist, you have the right to challenge the Will if you believe you are not adequately provided for. You may also be entitled to a payment under workers compensation law if your partner’s death occurred in a work-related incident.