What is the Legal Definition of a De Facto Relationship?

In accordance with Australian family law (Section 4AA of The Family Law Act 1975), a de facto relationship refers to two people of the opposite or same sex living together as a domestic couple daily. The stipulations that are involved here are that you cannot be a legally married couple or related to each other by family.


In some cases, a de facto partner might be a person who is still legally married to another person. But the de facto agreement is only valid if he or she is separated.


What is the Duration of a De Facto Relationship?

The length of time that is required to be considered a de facto relationship is at least two years. Therefore, as per the law, a person can only have a de facto partner if they have lived together as a couple without separation for a period of two years. Only in this case, a court can intervene and issue an order regarding settlements of de facto property matters. However, the rule can be evaded if significant contributions were made during this time or if children are involved.


As per Section 90SB of the Family Law Act, the court mandates the fulfilment of certain criteria to make an order of maintenance or acknowledge and regulate the property interests of former de facto couples. These are listed below:

  • The total length of the de facto relationship must be at least two years.
  • The child involved belongs to both parties engaged in de facto relationship.
  • The relationship has a legal registration or approval from the State or Territory.
  • The parties involved in the de facto relationship should apply for:
  1. The party involved in the de facto relationship applying for the declaration or the order should have made a considerable amount of contribution to the property or for the well-being and happiness of the family; and,
  2. A non-observance or non-fulfilment to make the declaration would result in the applicant having to bear serious consequences or injustice.


Would it be Necessary to Attend Court if We End Our Relationship?

It is not a necessity to go through trials if you choose to terminate your de facto relationship. There are cases where de facto couples do not have to divide the assets, debts, or other properties when they mutually agree to break up. However, not all cases are similar, and in your case, you may wish to claim a percentage of a property or full ownership of an asset. You can resolve the dispute or reach an agreement without involving the court.


In cases where you cannot decide on a fair property settlement, you can apply to a court to get a justified verdict. The jury and judge will assist you in having a proper division of property. Furthermore, the ex-partner can make a claim on superannuation for a specified period of time following the separation. In certain circumstances, spouse maintenance might be applicable.


However, you have to go through court proceedings within two years of separating from your former partner. Otherwise, you will have to apply for special court approval.


What is Included in the Term ‘Property of the Relationship’?

The ‘property of the relationship’ simply refers to all the debts and assets that both the parties in the de facto relationship owned or have separate names. The assets include all the objects or properties that were procured before or after the conclusion of the relationship. These items include but are not limited to:


  • The family home (residential property)
  • Superannuation
  • Cars and boats
  • Money pending on personal loans or credit cards
  • Home loan debt
  • Shares and investments
  • Personal or household items like jewellery, furniture, art pieces, etc.


Most people have a hard time coming to terms with ownership of the property or comprehending the notion of ‘Property of the Relationship’. In such cases, it is wise to seek legal advice from authorised law firms like Maatouks Law Group. Furthermore, we also help you protect your assets in a de facto relationship with the help of a property settlement agreement, which is like a pre-nuptial agreement.


What Impact Does the Separation Have on Superannuation?

Superannuation is one of the major areas of focus following a de facto relationship split. As per the superannuation splitting laws, once you separate, there is a probability that you will be entitled to some of your ex-partner’s super and vice versa.


Superannuation is considered an asset and viewed under the same lens as all the assets in the property lot (except in Western Australia). There are certain protocols one has to abide by while accessing the assets.


One must also refer to the policies outlined under the Family Law Act that include:

  • Superannuation fund
  • Self-managed super funds
  • An approved deposit funds


And the list goes on. The decision to provide benefits to a de facto partner depends on the superannuation fund’s discretion. The chances of getting the discretion exercised work in your favour only if the partner makes a legally binding death nomination and you have a registered partnership.


However, if you struggle to understand the various policies, you should not hesitate in contacting Maatouks Law Group. We have been operating since 1993 and have a deep grasp of the various nuances involved in court proceedings and legal aspects pertaining to de facto relationships and property settlements.


At What Point Do Property Rights for De Facto Relationships Come into Effect?

The property rights for de facto relationships come into effect once the relationship has ended. Generally, you have entitlements to your partner’s property and the property of the relationship. These are collectively referred to as de facto break-up entitlements.


You have the right to make a property claim under the Australian Family Law Act when:

  • You get the de facto relationship registered
  • You and your former de facto partner lived under the same roof and together for at least a period of two years before you went on your separate ways
  • You and your former de facto partner have a child or children together
  • You and your former partner have agreed upon a property settlement and have requested the Family Court to issue consent orders that you two have mutually decided


The property includes many items such as bank accounts, business assets, real estate, superannuation, personal property, and more.


But there are cases when you find property disputes to be cumbersome, and this is where Maatouks Law Group offers optimum assistance. Our local professional Sydney lawyers are friendly, and we help you reach a conclusion without the hassle. We have close ties with some of the top barristers in New South Wales and we stay aware of all the legal updates to give you an edge in your case.


What am I Entitled to if my De Facto Relationship Comes to an End?

If your de facto relationship comes to an end, your entitlement to the relationship properties will depend upon the circumstances. Every case is distinct; hence, your entitlements will differ from others


However, Australian family law provides specific fundamental norms and criteria to determine the property claims of de facto couples who have separated. In this regard, the time constraint is the most significant factor. Once you separate, you have only two years to file a property claim in court. During this two-year phase, the parties try to negotiate an agreement. Only if this fails, the case is applied to a court.


If you file a claim, the Family Court decides how to split the assets or the property entitlements by sticking to the following parameters:

  • Finding and estimating the value of each property item that either party owned before moving in together and later acquiring possessions.
  • Evaluating both parties’ financial and non-monetary contributions.
  • Taking into account the prospective requirements either party might have.
  • Assessing whether the proposed split is equitable for the involved parties.


A point to be noted here is that the time limit does not hold well if there are child/children involved. If you have children, it dissolves the entitlement rights in various ways. You might have to pay child support or if you or your partner quit your job, one of you is entitled to spousal maintenance.


If you are looking for legal consultations, Maatouks Law Group comes second to none. We treat each client with utmost respect and integrity and strive to offer full cooperation so that you remain well-informed about the legal proceedings. When you hire us, our experienced professional lawyers delve into the procedure with the help of which we will handle your case and work to achieve the desired outcome.


Call us Today on 02 9601 7222!