Under the Family Law Act 1975 (Cth), which is the Australian Law that covers family law, de facto couples have essentially the same property and financial rights as married couples when a relationship ends. But there’s a catch: unlike a marriage, there’s no certificate proving a de facto relationship exists. When a dispute arises, the first battle often isn’t about who gets what, it can be about whether the relationship counted as “de facto” in the first place.
Section 4AA of the Family Law Act 1975 defines a de facto relationship as one where two people, who aren’t married to each other or related by family, have “a relationship as a couple living together on a genuine domestic basis.” That sounds straightforward, but the Act then lists a wide range of circumstances a court can weigh up, including:
Critically, no single factor is decisive, and a couple doesn’t need to tick every box. The Court can find a de facto relationship existed even where the parties never lived under the same roof full-time.
There are two cases decided by the Court that show how flexible and fact specific the test for de facto relationships can be.
In one case, the Court set out how the section 4AA factors should be approached, noting that short, casual, or one-off encounters are unlikely to meet the threshold, and that a couple maintaining entirely separate households points away from a genuine de facto relationship. The case remains a key reference point for how courts weigh the statutory list.
In another case, the Court pushed the boundaries further. The Court found a de facto relationship existed over a 13-year period even though the couple never lived together and weren’t monogamous. What tipped the balance was the sheer volume and consistency of contact between them, including tens of thousands of text messages, combined with regular overnight stays and an ongoing sexual relationship. This case is a reminder that cohabitation isn’t the only path to a legally recognised de facto relationship.
On the flip side, the Court have also rejected claims where a relationship amounted to little more than a casual arrangement, sometimes described in judgments as “friends with benefits”, even where the couple shared a home and household duties for a period.
To bring a property or financial claim as a de facto partner, you generally need to show that the relationship meets the criteria of a de facto relationship, and that one partner made substantial contributions to make it just and equitable that an alteration of property interests occurs.
There are also strict time limits to bring a claim, so acting promptly matters. In de facto relationships, this time limit is two (2) years from the date of separation.
Because the test is so fact-dependent, two people in seemingly similar circumstances can land on opposite sides of the line. If your relationship has ended and you’re unsure whether you have a legal claim — or you’re concerned a former partner may bring one against you — it’s worth getting advice early. Our team can help you understand how the law applies to your specific situation.
