Is It De Facto or Just Dating? How Australian Law Defines Your Relationship.

It is important to be aware of whether you are considered by the Federal Circuit and Family Court of Australia (“the Court”) to be in a de facto relationship, as this is a determining factor of whether you or your partner may be entitled to commence family law proceedings.

Mandatory requirements of a de facto relationship

The Family Law Act provides some quite extensive criteria to defining what a de facto relationship is, and it starts with the following mandatory requirements:[1]

1. You and your partner are not legally married to each other;
2. You and your partner are not related by family; and
3. Having regard to all the circumstances of your relationship, you and your partner have a relationship as a couple living together on a genuine domestic basis.

The Family Law Act confirms that a de facto relationship can exist between two people, either of the same sex or different sexes.[2]

Interestingly, a de facto relationship can exist even if one of you is legally married to a different person.[3] There are some fascinating cases that cover this area, such as Lavrenty v Signe, where the parties were found to be in a de facto relationship despite the Respondent being still married to his first wife for part of their relationship.[4]

Working out if you have a relationship as a couple

The Family Law Act has spelled out a non-exhaustive list of the circumstances that the Court will consider when trying to work out if you and your partner have a relationship as a couple living together on a genuine domestic basis.

These circumstances are as follows:[5]

1. The duration of your relationship;
2. The nature and extent of your common residence;
3. Whether a sexual relationship exists;
4. The degree of financial dependence or interdependence, and whether there are arrangements for financial support between you and your partner;
5. The ownership, use and acquisition of your property;
6. The degree of mutual commitment to a shared life;
7. Whether your relationship is or was registered;
8. The care and support of any children; and
9. The reputation and public aspects of the relationship, and how you advertise your relationship to friends, family and your community.

It is not necessary for the Court to make a finding in relation to any of the above circumstances,[6] and the Court may attach whatever weight that seems appropriate to any of the circumstances.[7]

What does being in a de facto relationship mean for financial proceedings?

Determining that you are or were in a de facto relationship is the first requirement that must be met, before the Court will consider hearing a matter for financial proceedings.

In addition to this, any parties seeking financial orders must also meet the following criteria:[8]

1. The de facto relationship lasted for at least 2 years; OR
2. There is a child of the relationship; OR
3. The party to the de facto relationship made substantial contributions such as:[9]
4. The acquisition, conservation or improvement of any joint or solely-owned property of the parties; and
5. The welfare of the family including any contribution made in the capacity of homemaker or parent; OR
6. A failure to make the application would result in a serious injustice; OR
7. The relationship was registered under prescribed law.

A de facto relationship does not need to last for 2 consecutive years. Instead, you can aggregate two periods together to form the 2-year requirement.[10]

You or your partner may commence financial proceedings at any time up until 2 years after the breakdown of your de facto relationship.

What about parenting proceedings?

Whether or not you are in a de facto relationship, being a parent of a child automatically gives you standing to commence parenting proceedings with the Court.

For further information about who is considered a “parent”, especially in relation to same-sex couples and artificial conception, please see a previous article on this topic: https://www.conditsisnewcastle.com.au/same-sex-relationships-and-artificial-conception-am-i-a-parent/.

Registering your relationship

A registered relationship in NSW is a legal recognition of your relationship conferred by the State Government. You can register a diverse array of relationship status types, including heterosexual or same-sex unions, de facto relationships or other exclusive arrangements.

There are several potential benefits to registering your relationship, including:

1. Easier access to the Court to commence financial proceedings;
2. Evidential support when claiming parenting payments and spousal entitlements;
3. You obtain the legal right to make crucial medical decisions for each other; and
4. It may significantly aid in spousal visa applications.

The following are requirements for a registered relationship:

1. At least one of you lives in NSW;
2. You are both over the age of 18;
3. Neither of you are married to each other or anyone else;
4. Neither of you already have a registered relationship;
5. Neither of you are in a relationship with another person; and
6. You are not related by family.

You can apply to have your relationship registered with the NSW Government here: https://www.nsw.gov.au/family-and-relationships/relationship-register. You may decide to have a relationship ceremony and/or commemorative certificates as part of the process.

If you require advice about navigating your de facto relationship, or you want to find out if you are in a de facto relationship, please book a confidential consultation with one of our experienced family lawyers today.

[1] Family Law Act 1975 (Cth) (“FLA”), s 4AA(1).

[2] Ibid s 4AA(5)(a).

[3] Ibid s 4AA(5)(b).

[4] Lavrenty & Signe [2024] FedCFamC1F 131, [85] (Carew J).

[5] FLA, s 4AA(2)(a)-(i).

[6] FLA, s 4AA(3).

[7] Ibid s 4AA(4).

[8] Ibid s 90SB.

[9] Ibid s 90SM(4)(a)-(c).

[10] Dahl v Hamblin (2011) Fam LR 229, [8] (Finn J).