A de facto relationship is a relationship in which a couple lives together on a genuine domestic basis. This definition is the same across Queensland, New South Wales, Victoria, Northern Territory, South Australia, Western Australia, Tasmania, and the Australian Capital Territory.
De facto partners (regardless of when they have separated) can apply for Parenting Orders in the Family or Federal Magistrates Court in the same way as a married couple. However, a de facto couple must apply to the family Courts for a property settlement (if desired) within 2 years of the date of separation.
Couples who are same sex or opposite sex are included in the definition of de facto relationship under Australian law. A couple by marriage or who are related by family cannot be considered to be in a de facto relationship. However, if a person is legally married they can still be considered to be in a de facto relationship with another person they are not married to.
There are few differences in family law between de facto couples and married couples.
You may only be legally married to one other person, who is only married to you. However, you may be in multiple de facto relationships if the relationship is between only two people. You may also be in a de facto relationship and married at the same time.
If you are seeking property orders as a de-facto couple, you will need to prove you were in a relationship for at least two years or had a child together, and that you lived in Australia for at least a third of your relationship. If you are seeking parenting orders as a de-facto couple, it is the same procedure as if you were married.
A de facto relationship is defined as a domestic relationship that lasts for at least two years with the couple living together on a genuine domestic basis. You must not be married to your partner nor related by family to them. There are many factors for the court to consider when deciding if there was a genuine domestic basis to the relationship. These include the length of the relationship, if there were any children from the relationship, financial dependence or interdependence, or a commitment to a shared life. You may refer to evidence you have in your materials filed with the court during your matter to prove you were in a de facto relationship.
A court may declare that a couple were in a de facto relationship. A declaration can only be made if one of the parties are seeking some sort of family law order, such as a property settlement, and the issue of whether a de facto relationship existed is in dispute. The court may make a declaration that a de facto relationship existed to allow the rest of the proceedings to continue.
The date that parties separate is the date a de facto relationship ends. The date of separation is important if parties are seeking a property settlement because you have two years from the date of your separation to start proceedings.
You will firstly need to prove that you were in a de facto relationship. Factors may include:
• If you lived together
• If there was a sexual relationship
• If you had children together
• If you live in the same residence
Proving the end of a de facto relationship can be thought of more as not being able to prove that there was a de facto relationship anymore. A de facto relationship is not presumed to exist at any given time. If a de facto relationship cannot be proved at the relevant time that you say it ended, then this can be taken as a date of separation.