De facto relationships are becoming increasingly common, with 80% of Australian couples living together before marriage. While many couples hesitate to think about marriage or breakups, it is important to understand your legal rights in a de facto relationship if separation occurs, as they offer similar entitlements to those of married couples when it comes to assets, property and children.

Here are five considerations that our family lawyers give for those in, or thinking of entering, a de facto relationship:

Is My Relationship Considered De Facto?

A person is in a ‘de facto relationship’ with another person (regardless of gender) if, in considering all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Those circumstances include:

• The length of the relationship
• The nature and extent of common residence
• Whether a sexual relationship exists
• The degree of financial dependence and support
• Ownership, use and acquisition of property
• The degree of mutual commitment to a shared life
• The care and support of children
• Reputation and public aspects of the relationship
• Whether the relationship is or was registered

For a full legal definition, refer to section 4AA of the Family Law Act 1975 (Cth).

Do We Have To Be A ‘Couple’ For Two Years To Be Considered ‘De Facto’?

No. However, a de facto property settlement claim requires a two year relationship or a child or substantial contributions in relation to a de facto relationship (and serious injustice if the order sought is not made).

Should I Register My De Facto Relationship?

Registering your de facto relationship in Australia is optional. It can be done online and offers several advantages:

• Legal recognition without the need for further evidence;
• Easier processing for inheritance, tax and superannuation benefits; and
• Avoiding disputes regarding the start and end date of the relationship.

Should I Protect My Assets?

De facto partners are encouraged to take proactive steps at the outset of their relationship to establish clear legal arrangements in the event of separation to prevent potential disputes and provide peace of mind. A Financial Agreement is a cost-effective means of achieving this. This legal document sets out how assets, property and other financial matters will be divided in the event of separation. For the Financial Agreement to be binding, both parties must sign the agreement and have each obtained independent legal advice.

What Does Separation in a De Facto Relationship Look Like?

If you and your partner can agree on how to divide your assets, you can avoid going to court. If not, the court will handle the property settlement in the same way as it would for a married couple.