De Facto Relationships

De facto relationships

The definition of a defacto relationship is in Section 4AA of the Family Law Act 1975. The law necessitates that an individual and their former partner, whether of the same or opposite gender, were in a relationship as a couple living under the same roof on a genuine domestic basis. But the relationship is not defined as a de facto one if the couple was married, or if there is a family relation.

Given that the definition of defacto varies according to the particular circumstances of a couple, the law takes into account a set of factors to decide if a couple are, or were defacto or if the relationship is not as serious. Those factors are:

  • If the couple are married or not.
  • The period of time that the couple have been in a relationship together.
  • If the relationship was a sexual one.
  • If there is financial dependency.
  • The extent to which there is a mutual commitment to having a shared life.
  • If the relationship happens to be registered in an Australian state or territory.
  • The property ownership in the relationship along with its use.
  • If there is support and care for children in the relationship.
  • The public components of the relationship, for example reputation.

How to register a defacto relationship

The majority of states and territories will let you register a defacto relationship via the Registry of Births, Deaths and Marriages. This will entitle you to a certificate that provides you with proof of the defacto relationship and the duration of the relationship. 

Can I make an application to have my de facto dispute resolved if the matter is related to my children?

Yes. Both the Family Court and Federal Circuit Court attend to issues concerning the children of defacto relationships, just as they would for issues surrounding the children of married couples.

Can I make an application to have my de facto financial dispute resolved?

Yes. As of 1 March 2009, parties to an eligible defacto relationship that has come to an end can make an application to either the Family Court or Federal Circuit Court. The financial matters would be determined exactly the same as they would be for married couples.

An application for defacto financial orders must be made within two years of the end of the relationship. One would require the Court’s permission to apply later than this time.

Prior to the Court determining a financial dispute, one must meet all of the following criteria:

  1. The individual was in a proper de facto relationship with their former partner which has come to an end.
  2. The individual has to meet one of the four following gateway criteria:
  • That the duration of the defacto relationship is a minimum of 2 years.
  • That a child is present in the defacto relationship.
  • That the relationship is currently, or formerly registered under a prescribed law of a State or Territory.
  • When reviewing property or custodial claims in the breakdown of the relationship, it is accepted that major contributions were being made by one party and if an order were not issued, it would be a major injustice.
  1. The individual has a geographical connection to a jurisdiction that is participating.
  2. That the relationship ended after March 1, 2009, however one might be allowed to make an application to the courts. That’s if the relationship ended before the date applicable in NSW.

Any individual should seek legal advice over whether their circumstances meet the criteria prior to submitting an application. They can do this via Wilding & Co Lawyers, defacto lawyer Sydney.

How do I apply to the Family Court or Federal Circuit Court?

Any individual should seek legal advice over whether their circumstances meet the criteria prior to submitting an application.

The application is submitted with the same forms used by those in a marriage, and the case will be assessed using the same procedures that are applied to married couples.

Wilding & Co Lawyers, defacto lawyer Sydney, can provide that legal advice.

If a defacto partner dies

If you are deemed to be in a defacto relationship and your partner passes away, then you are entitled to the same rights as a person in a marriage. This would include:

  • A share of your partner’s estate if they don’t have a Will.
  • A right to contest the Will if not properly provided for.
  • Claim compensation entitlements via workers compensation law if your partner passes away while undertaking their employment.
  • Claiming of social security entitlements.

Are you in a defacto financial dispute? Contact Wilding & Co Lawyers, defacto lawyer Sydney, based in Balmain and the Sydney CBD, for assistance on 02 9701 0042.

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