De Facto Relationships

De Facto Relationships and Family Law in Australia

Whether a relationship is legally recognised as a de facto relationship can have significant consequences following separation, particularly in relation to property settlement and financial maintenance.

A couple does not necessarily decide for themselves whether their relationship is legally a de facto relationship. If the issue is disputed, the circumstances of the relationship are considered under the Family Law Act 1975 (Cth).

What is a De Facto Relationship?

Under the Family Law Act, a de facto relationship can exist where two people are not legally married to each other, are not related by family and, having regard to all the circumstances of their relationship, are living together as a couple on a genuine domestic basis.

A de facto relationship can exist between people of the same or different sex.

A de facto relationship may also exist even where one of the people is legally married to someone else or is in another de facto relationship.

How is a De Facto Relationship Determined?

There is no single test that determines whether two people are in a de facto relationship.

The circumstances that may be considered include:

• the duration of the relationship;
• the nature and extent of any shared residence;
• whether a sexual relationship exists;
• the degree of financial dependence or interdependence between the parties;
• arrangements for financial support;
• the ownership, use and acquisition of property;
• the degree of mutual commitment to a shared life;
• whether the relationship has been formally registered;
• the care and support of children; and
• the reputation and public aspects of the relationship.

No single factor is necessarily decisive. The circumstances are considered as a whole, and different factors may carry different weight depending upon the particular relationship.

Do You Have to Live Together Full-Time?

Living arrangements are relevant, but the existence of a de facto relationship is not determined solely by whether the parties continuously occupy the same home.

The nature and extent of the parties’ common residence is one of a number of factors considered when determining whether they were living together as a couple on a genuine domestic basis.

This can make the legal position more complex where parties maintain separate homes, spend significant periods apart for employment or other reasons, or disagree about when their relationship became de facto.

Does a De Facto Relationship Have to Last Two Years?

There is an important distinction between determining whether a de facto relationship exists and determining whether the Federal Circuit and Family Court of Australia can make certain financial orders following its breakdown.

A relationship does not automatically have to last two years before it can be considered a de facto relationship.

However, for the Court to make certain property settlement or maintenance orders following the breakdown of a de facto relationship, at least one of the applicable gateway requirements generally needs to be satisfied.

When Can a De Facto Partner Apply for Property or Financial Orders?

The Court may be able to make financial or property orders following the breakdown of a de facto relationship where at least one of the following applies:

• the period, or total periods, of the de facto relationship was at least two years;
• there is a child of the de facto relationship;
• the relationship is or was registered under a prescribed State or Territory law; or
• one party made substantial contributions of the relevant kind and failing to make an order would result in serious injustice to that person.

Additional jurisdictional requirements can apply and legal advice should be obtained about the circumstances of the particular relationship.

Property Settlement After a De Facto Relationship

Eligible former de facto partners can seek orders dealing with property and financial matters following separation.

Property settlement is not determined simply by asking who legally owns each asset or assuming that everything will be divided equally.

The Court applies the framework in the Family Law Act to the parties’ property and financial circumstances, including relevant contributions and current and future circumstances.

Changes to the Family Law Act applying from 10 June 2025 also expressly recognise the relevance of the economic effect of family violence when determining property and financial matters.

De Facto Partner Maintenance

In some circumstances, a former de facto partner may seek maintenance from the other party following the breakdown of the relationship.

Maintenance is different from property settlement. Broadly, it concerns whether one party is unable to support themselves adequately and whether the other party has the capacity to provide financial support.

Eligibility depends upon the circumstances and requirements of the Family Law Act.

Time Limit After a De Facto Relationship Ends

A person generally has two years from the breakdown of a de facto relationship to commence proceedings for de facto financial or property orders.

If the two-year period has expired, permission from the Court may be required before proceedings can be commenced, and permission is not automatically granted.

For this reason, people should obtain legal advice promptly following separation rather than waiting until the limitation period is approaching.

Registered Relationships in NSW

NSW provides for the registration of eligible relationships under the Relationships Register Act 2010 (NSW).

Registration can be relevant under the Family Law Act, including as one of the gateway criteria for certain de facto financial proceedings.

Registration does not mean that all family-law issues are automatically resolved, and the circumstances of the particular relationship still need to be considered.

Financial Agreements for De Facto Couples

De facto couples may be able to enter into a financial agreement dealing with property, financial resources and maintenance.

A financial agreement may be made before, during or after a de facto relationship, subject to the requirements of the Family Law Act.

There are strict legal requirements for a financial agreement to be binding, including requirements concerning independent legal advice.

Disputes About Whether a De Facto Relationship Existed

Sometimes the existence or duration of a de facto relationship is itself disputed.

One party may say that the couple were living together on a genuine domestic basis while the other characterises the relationship differently.

Evidence concerning living arrangements, finances, property, communications, children, social activities and the way the relationship was represented publicly may become relevant.

Legal advice should be obtained where the existence or duration of the relationship may affect property or maintenance rights.

De Facto Relationship Legal Advice

Russell Kelly & Associates can advise on legal issues arising from de facto relationships and relationship breakdown, including property and financial matters.

Learn more about our Family Law services.

Learn more about Alternative Dispute Resolution.

Speak to Russell Kelly & Associates

If you are uncertain whether your relationship is legally a de facto relationship, or need advice about your rights and obligations following separation, obtaining advice early can help identify the issues and applicable time limits.

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This information is general in nature. Whether a de facto relationship exists and whether a person is entitled to seek property, financial or maintenance orders depends upon the particular circumstances and applicable provisions of the Family Law Act 1975 (Cth).