The legal disadvantages of de facto relationships


by | Feb 9, 2022 | Blog, De Facto

If you’re not married and you’re in a relationship, you may be in what’s called a ‘de facto’ relationship with your partner. 

The good news is that as de facto partners, you have very similar rights as married couples under family law. The bad news is that proving you’re in a de facto relationship is more difficult than proving you’re in a marriage, which can complicate legal matters. 

With that said, to make sure you know exactly where you stand, we provide a De Facto legal service where we can take a closer look at the legal disadvantages of de facto relationships.

What is a de facto relationship?

You are deemed to be in a de facto relationship under the Family Law Act if:

  • You and your partner are not legally married or related by family. 

  • Having regard to all your relationships, you have a relationship as a couple living together on a genuine domestic basis. 

A de facto relationship can still exist even if one partner is legally married to somebody else or in another de facto relationship. 

Your rights as a de facto partner

As a de facto partner, you have much the same rights as a married couple. That means if your partner passes away without creating a will (otherwise known as dying intestate) and does not have any children, you may be entitled to a portion of their estate. 

If your relationship ends, you may be able to make a claim for spousal maintenance and to divide relationship property in a way that you deem to be fair (although it’s always best to agree on these matters amicably outside of court).

couple arguing de facto relationship legal

The burden of proof is on you

You may have entitlements as a de facto partner but first you must prove to the court that you are (or were) in a de facto relationship. In some cases, this can be difficult. The court will make decisions on de facto relationships on a case-by-case basis, but some of the things it may consider when looking at your relationship may include:

  1. The duration of your relationship.
  2. Whether or not you lived together (and for how long if you did).
  3. Whether or not a sexual relationship existed.
  4. The degree of financial interdependence, and any arrangements for support, between or by the parties.
  5. The ownership, use and acquisition of property.
  6. Whether or not you have children together.
  7. The care and support of children. 
  8. The performance of household duties.
  9. The degree of mutual commitment and mutual support.
  10. Reputation and ‘public’ aspects of the relationship.

Proving you are in a de facto relationship can be much harder than proving you’re married where you can just produce a marriage certificate. This is especially true if one partner controls all the finances, has assets in their name, or lives in a separate house part-time. To ensure you can provide proof of your relationship, reach out to us for de facto law advice.

Ensuring your defacto relationship is documented

Luckily, you may be able to take a few simple steps to make it easier to prove you’re in a de facto relationship should you need to. The most obvious is to register your relationship with the state government – you must do this with your partner and the application can be completed online here

It may also be helpful to provide proof of your de facto relationship, including anything that shows that you:

  • Have a mutual commitment with your spouse or de facto partner to the exclusion of all others
  • Are in a genuine and continuing relationship.
  • Live together or don’t live permanently apart.
  • Share finances and household responsibilities. 

This could include joint mortgage or lease documents, joint bank account statements, evidence that you attend social events together (such as invitations), proof you travel or do social activities together, and proof that you have combined your personal matters.

de facto relationship

Outcomes can be uncertain 

The unfortunate fact is that the outcome of any claim or court proceeding will be uncertain if your ex-partner claims that you were not in a de facto relationship. If your relationship is ending, or has ended, and you’re uncertain about what you’re entitled to or what you need to do, it’s a good idea to speak to a family lawyer you can trust. 

Get in touch with Testart Family Law and we’ll help you navigate this difficult time and ensure you receive everything you are legally entitled to.