Not married but in a de facto relationship? Here’s what this means in Australia
Key Points
- The criteria for a court determination on a de facto relationship, if not registered, are not identical for all cases, with assessments based on individual circumstances.
- The de facto institution safeguards the rights of non-married couples, including in post-separation matters or claims arising from a partner’s death.
- Mediation is an alternative to court for resolving disputes after the breakdown of a de facto relationship.
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Nicole Evans, a Sydney lawyer with expertise in family law, provides some examples of why couples choose to establish their de facto status legally.
Having your de facto relationship registered may also make it easier to claim some welfare entitlements as a young person to show that you live independently from your parents.
Court determination of a de facto relationship
When a court is asked to work out if two people have a relationship as a de facto couple, circumstances taken into account may include:
- The duration of the relationship and its public aspects
- Whether a sexual relationship exists
- Any financial arrangements or common assets
- The degree of commitment to a shared life
“A lot of people think that you have to be in a relationship for two years to be de facto, that’s not true. And a lot of people think if you’re in a de facto relationship, after two years, you’re suddenly entitled to 50% of the other person’s assets. Again, that’s not true.”
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There is even case law that acknowledges the existence of a de facto couple, even if one of the persons is legally married to someone else.
“It documents what you’ve both brought into the relationship. And it determines then what the agreement is of how the assets and liabilities would be split between you in the event of a separation.
“The lawyer has to sign a document that says they’ve provided you with independent legal advice on the advantages and disadvantages of entering into this type of agreement.”
Dispute resolution through mediation
Post-separation, the court may also make orders about financial matters, including division of assets and partner maintenance.
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Applications for court orders on such matters must be submitted within two years of separating from the de facto partner.
The mediation process is voluntary. When one party initiates it, the service contacts the other person to ask if they are willing to participate.
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If both parties agree to proceed, a screening process follows to get a sense of the relationship history, including any risk factors, Ms Bennett explains.
“If you start in court, it becomes by default, a very adversarial and argumentative process.
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“Whereas if you’re coming through mediation, you’re finding out what you are able to see from the other one’s point of view. It provides education along the way so that actually people feel equipped to handle the situation themselves, rather than just sitting back and being told what to do.”
Emergency call 000|Lifeline 13 11 14|National sexual assault, domestic violence counselling service 1800 737 732.
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