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What does it take to be considered “de facto”?

By June 17, 2022February 23rd, 2024No Comments

Perhaps your relationship is relatively new and you have not yet defined yourself as “de factos”. Perhaps you feel that because you don’t actually live together, you couldn’t be classified as “de facto”. But it’s important to understand how de facto family law works in Australia, because you may be in a de facto relationship without realising—and this could well have financial and legal implications. Today we’re looking at the question: what does it take to be considered “de facto”? And does becoming “de facto” make you financially vulnerable? Should you be worried about moving in with your boyfriend if you want to keep your finances separate and not risk your own property being distributed if you split up? Let’s take a look.

De facto property rights

De facto relationships are very common in Australia and our legislation reflects this. Separated de factos can apply to the courts to have their assets distributed and future financial needs met, including through spousal support, just like divorcing couples. Or, if a de facto spouse dies, the surviving de facto has the right to share in the property and estate of their late partner.

The first step that needs to be satisfied: convincing the court that you were in fact de factos. You might have heard people say “you become de facto after six months of living together”, which is incorrect. So what does it take to be considered “de facto”?

Doesn’t living together automatically make you “de facto”?

Not always. Disputes over whether or not a couple were “de facto” are often heard in the family courts. Sometimes, couples who were not living together were still found to be “de facto” in the eyes of the law. In other cases, couples lived together–even had sexual relationships–but were still found not to be “de facto” in the eyes of the law.

There is no hard and fast rule and everything depends on the unique circumstances of the relationship. There are a range of factors the courts consider, including whether there was a shared residence. However, the courts rely on putting together a composite picture of the relationship by weighing all the factors. Other factors against a couple being de facto might well outweigh the simple fact that they were sharing a home.

Is your relationship “de facto”?

If you are uncertain as to whether your relationship could be defined as “de facto”, then you might like to give some thought to the following.

In Australia’s family law system, to ‘trigger’ the family court’s jurisdiction, you must meet at least one of the “gateway criteria”.

  1. That the period for the de facto relationship is at least 2 years.
  2. That there is a child of the de facto relationship.
  3. That the relationship is or was registered under a prescribed law of a State or Territory.
  4. That a party to the relationship has made such a significant contribution to the assets or financial circumstances of the other that it would result in serious injustice if an order for alteration of property interests was not made.

Whether there was a de facto relationship will depend on a consideration of a range of factors, including:

  • The length of the relationship
  • Whether there was a shared residence
  • How property is owned and was used
  • Whether there was a sexual relationship
  • Whether there was financial interdependence
  • The existence of children of the relationship
  • Whether there was a mutual commitment to sharing a life
  • How you presented your relationship to others
  • Any other factor the court thinks might be relevant

If you think your relationship meets the test of being de factos, you might be wondering what you can do to protect yourself financially. Are there pre-nups for de factos? In fact there are and they’re also known as “no nups”.

Protecting yourself in a de facto relationship

“No nups”, or cohabitation agreements, are a way you can help protect yourself financially if you enter into a de facto relationship. The official term is a Binding Financial Agreement, which sets out what would happen with your assets if you go your separate ways.

If you would like to discuss whether you should consider entering into a Binding Financial Agreement with your de facto partner, please give Canberra family lawyer Cristina Huesch or one of our other experienced solicitors a call here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.


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