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Know Your Rights

What’s the Deal With De Facto Relationships?

Boyfriend, girlfriend, partner, de facto? Yes they are different, and yes you should care.

by Kamna Muddagouni
05 October 2018, 1:56am

Image by Ashley Vujevic

If you’ve been in a long term relationship, you’ve most likely traversed some amount of awkward conversation with the person you’re seeing (and your friends or family) about what to call them. At what stage does a person go from being a hook-up, to someone you’re seeing, to your boyfriend, girlfriend, or partner? And if you settle on partner, does that make you sound like you’re running an ad agency together in your spare time?

Awkward conversations aside, once you decide to shack up with said love interest, legal questions can arise about what your relationship “means.” Settle in lovebirds, we’re about to have a very romantic talk about the bureaucracy surrounding settling down with someone.

A quick heads up: this article isn’t going to be talking migration law so if you’re trying to apply for a visa for your lover, this might not be the best resource.

Whoa, all of this is heavy right? So why does it matter?

It matters for a number of reasons.

Firstly, in relation to Centrelink, whether your relationship is a de facto or not can impact the payments you receive. Centrelink regards de facto relationships differently depending on the type of payment you are claiming, so it’s important you check with Centrelink or get advice about this. If you do not tell Centrelink about your de facto relationship, and you are overpaid as a result, then you might incur a Centrelink debt or, in worst case scenario, be criminally prosecuted. There’s also a chance that Centrelink could deem you to be a member of a de facto relationship. Basically this means Centrelink can review your records, or be notified by another government agency or even a person, that you’re in a relationship, investigate it, and come to their own decision that you’re in a de facto relationship—without you declaring it. If this happens and you disagree with this assessment, you have a right to review it, and should get advice on how to do so.

Secondly, under family law, whether you are in a de facto relationship or not impacts on your rights when you break up. The Family Law Act 1975, which sets out the main laws in relation to what happens when a relationship breaks down and what rights couples have in relation to the division of property and custody of kids, covers de facto couples. This means that depending on whether your relationship is a de facto or not could impact whether you have legally enforceable rights in relation to kids you’ve had, your shared finances, and any property you’ve made a significant financial contribution to.

So what is a de facto?

Not just a term bandied around by the only kid that took Latin in Year 12. A de facto relationship is actually a legal term used in a few different contexts, including in family law and for Centrelink purposes.

Different definitions apply, depending on the context, but a de facto relationship basically requires that you and your partner live together on a genuine domestic basis, and are not legally married to one another or related by family. You both also need to be over the age of consent as per your relevant state or territory.

Prior to 1 July 2009, same-sex de facto relationships were not recognised under social security and family assistance laws. But since then it doesn’t matter the sex of the person you’re with in order for you to be classified as being in a de facto relationship.

What time period makes a de facto?

There are different time periods for when a relationship might be considered de facto or not; the answer depends on what government authority is looking at your relationship.

Under social security laws, there’s no set time limit after which a relationship becomes de facto. Instead, the authorities look at five factors in establishing whether a de facto relationship exists or not:

  1. Financial aspects, such as your degree of financial interdependence and how much you provide financial support to each other.
  2. The nature of your household.
  3. Social aspects such as how the couple presents themselves to society.
  4. The presence or absence of a sexual relationship including the degree of emotional support you provide each other.
  5. The nature of commitment between the couple.

There’s a slightly different understanding of what makes a de facto relationship under family law—aka the laws that work out what each person’s rights are when the relationship breaks down. Family laws in Australia only see a relationship as a de facto relationship (and therefore let you bring a claim outside of a married relationship) if:

  • You were in the relationship for two years; or
  • There was a child in the relationship; or
  • You registered your relationship under state or territory laws; or
  • There was property involved in your relationship where one person made significant financial contributions.

Are pets covered by these laws?

Surprisingly, they can be. Under family law, pets could be considered property, like furniture, so you could bring a dispute if you are in a de facto relationship about who gets to keep the pet. But pets aren’t treated in the same ways as custody for children, so custody arrangements don’t exactly work in the same way. Legal proceedings can also be lengthy and expensive and are not an option for most. So if you can avoid it, some couples may choose to put a written agreement in place to determine who gets to keep the pet if the relationship breaks down.

Please note: this information is only intended as a guide to the law and should not be used as a substitute for legal advice.

For more legal advice about things you actually care about, check out the rest of the Know Your Rights series.