De facto relationships

Living as a couple on a “genuine domestic basis”


The Family Law Act defines a couple as being in a de facto relationship if:

(a) they are not legally married to each other; and (b) they are not related by family; and (c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

In determining whether a couple is living together on a “genuine domestic basis”, section 4AA(2) provides a list of factors to consider

Although de facto relationships take many forms, in the typical scenario of an unmarried a couple living together and having an intimate and sexual relationship, this will usually meet the legal criteria.

When a couple does not live together permanently or their relationship does have all of the “typical” factors, they can still be in a de facto relationship if a combination of other factors is strong enough to demonstrate that the relationship was “marriage-like”. However, in these cases, it can be more difficult to advise with certainty whether the Court would find that there was a “de facto” relationship or not. 

When a de facto couple separates, one of them may be entitled to make a financial claim against the other if one of the section 90SB criteria is met:

  • the length of the de facto relationship was at least 2 years, or
  • there is a child of the de facto relationship, or
  • the party made substantial contributions and would suffer serious injustice if they cannot make their claim, or
  • the relationship is or was registered under a prescribed law of a State or Territory

There is a time limit of 2 years from the date of separation for a de facto partner to make a financial claim. After that time limit expires, leave (permission) of the Court is required to make a claim.

Because the date of separation is often contested, if you have separated you should seek legal advice as a matter of priority.  

How we can help

We can help you understand whether you are in (or were in) a de facto relationship and your rights and obligations.

If you have separated, we can give you advice about a financial settlement and if you require we can represent you in negotiations or court proceedings.

If you have started (or are looking to start) a de facto relationship, we can also give you advice about making a prenup.  

Book a Free Introductory Call

In this free 15-minute call, we will confirm if we can assist with your case, answer any questions you have about our services, and discuss the next steps. This call is with David Gale, Director & Accredited Specialist in Family Law.