How long do you have to live together to be in a de facto relationship?

The Family Law Act 1975 (Cth) sets no minimum period for a de facto relationship to exist. The 2-year period matters only as one of the gateways in section 90SB for property and maintenance orders.

Can you be in a de facto relationship while married to someone else?

Yes. Section 4AA(5)(b) of the Family Law Act 1975 (Cth) says a de facto relationship can exist even if one person is legally married to someone else or in another de facto relationship.

Do you need a divorce to end a de facto relationship?

No. A de facto relationship ends on separation. There is no divorce, and the 2-year time limit for property and maintenance applications runs from the end of the relationship.

Is a de facto relationship the same for Centrelink or a partner visa?

Not necessarily. Social security, tax and migration laws apply their own tests, so meeting the Family Law Act definition does not automatically satisfy them.

What Is a De Facto Relationship in Australian Law?

Q: Do same-sex couples count as de facto?

Yes. Section 4AA(5)(a) confirms a de facto relationship can exist between two people of different sexes or of the same sex.

A de facto relationship, under section 4AA of the Family Law Act 1975 (Cth), is a relationship between two people who are not married to each other and not related by family and who, having regard to all the circumstances, have a relationship as a couple living together on a genuine domestic basis. To seek property or maintenance orders after separation, a former de facto partner must also meet one of four gateways in section 90SB, such as 2 years together or a child of the relationship, and must apply within 2 years after the relationship ends.

If you have separated, the first step is to gather evidence of the relationship: its length, shared address, finances, property and children. Then check the section 90SB gateway and the 2-year deadline. A family lawyer can confirm whether the relationship qualifies, and our ranked list of family lawyers in Australia compares firms that handle de facto property matters.

What is the legal definition of a de facto relationship?

The legal definition of a de facto relationship in section 4AA(1) has three parts. Two people are in a de facto relationship if:

they are not legally married to each other;
they are not related by family (parent and child, other descendants, or siblings and half-siblings, including by adoption); and
having regard to all the circumstances, they have a relationship as a couple living together on a genuine domestic basis.

Section 4AA(5) adds that a de facto relationship can exist between two people of the same sex or different sexes, and even if one of them is legally married to someone else or in another de facto relationship.

What factors decide whether a couple is de facto?

The factors that decide whether a couple is de facto are the nine circumstances in section 4AA(2). A court can consider any or all of them:

The duration of the relationship.
The nature and extent of their common residence.
Whether a sexual relationship exists.
The degree of financial dependence or interdependence, and any arrangements for financial support.
The ownership, use and acquisition of their property.
The degree of mutual commitment to a shared life.
Whether the relationship is or was registered under a prescribed state or territory law.
The care and support of children.
The reputation and public aspects of the relationship.

No single factor is essential. Under section 4AA(3) and (4), the court weighs the circumstances as it considers appropriate in each case. A couple who kept separate finances can still be de facto, and a couple who shared a lease might not be.

How long do you have to be together to be de facto?

You do not have to be together for any minimum time to be in a de facto relationship under the Family Law Act. Duration is only one factor in section 4AA(2).

The 2-year figure people often quote comes from section 90SB, and it applies only when a former partner asks a court for property or maintenance orders. Other laws, such as social security, tax and migration law, use their own tests and time periods, so a "de facto" status for one purpose does not settle it for another.

When can a de facto partner apply for property orders?

A de facto partner can apply for property or maintenance orders only if the court is satisfied of one of the four gateways in section 90SB.

Section 90SB gateway	What must be shown
(a) Length	The relationship lasted at least 2 years in total (separate periods can be added together)
(b) Child	There is a child of the de facto relationship
(c) Substantial contributions	The applicant made substantial financial, non-financial or homemaker and parent contributions, and failing to make the order would cause serious injustice to the applicant
(d) Registration	The relationship is or was registered under a prescribed law of a state or territory

The court must also be satisfied of the geographical requirement in section 90SK. Either party must have been ordinarily resident in a participating jurisdiction when the application is made, and the couple must have a sufficient connection with those jurisdictions (for example, both lived there for at least a third of the relationship, or they lived there when the relationship broke down).

If the existence or length of the relationship is disputed, the court can declare whether a de facto relationship existed, how long it lasted and when it ended, under section 90RD.

What happens when a de facto relationship ends?

When a de facto relationship ends, the former partners deal with property, children and support under the Family Law Act, much as married couples do, but with different time limits and no divorce.

Property and superannuation

Property is divided under section 90SM, using the same contribution-based approach that applies to married couples. The application must be made within 2 years after the relationship ends, under section 44(5). After that, the court's leave is needed, and it is granted only if hardship would be caused to the applicant or a child, under section 44(6). Our guide to property settlement after separation explains the steps.

Children

Parenting orders are made on the same basis for children of de facto and married parents, with the child's best interests as the deciding factor. Our guide to parenting orders in Australia covers the process. Child support is assessed by Services Australia under the Child Support (Assessment) Act 1989 (Cth), as explained in our guide to child support in Australia.

Maintenance

A former de facto partner who is unable to support themselves adequately, for example because of the care of a child under 18, age or incapacity, can apply for de facto partner maintenance under section 90SE. Under section 90SF, the other partner pays only to the extent they are reasonably able to. The same gateways and the 2-year time limit apply.

Financial agreements

De facto couples can make a binding financial agreement before, during or after the relationship under Part VIIIAB. See our guide to binding financial agreements.

How is a de facto relationship different from a marriage?

Issue	Married couple	De facto couple
How it ends	Divorce order after 12 months' separation (section 48)	Separation; no divorce
Time limit for property application	12 months after the divorce order takes effect (section 44(3))	2 years after the relationship ends (section 44(5))
Threshold before orders can be made	None	One of the four section 90SB gateways, plus section 90SK
Property orders	Section 79	Section 90SM
Financial agreements	Part VIIIA	Part VIIIAB
Western Australia	Family Law Act applies	Family Court Act 1997 (WA) applies

How do you prove a de facto relationship?

You prove a de facto relationship with documents and evidence that match the section 4AA(2) factors. Common evidence includes:

leases, mortgage documents or bills at a shared address;
joint bank accounts, loans or shared expenses;
property bought or used together;
birth certificates of children of the relationship;
evidence of how the couple presented to family, friends and others, such as statements, invitations or social media; and
a relationship registration certificate, if the relationship was registered.

When filing for consent orders as a registered de facto couple, the Federal Circuit and Family Court of Australia asks for a copy of the registration certificate or other proof.

What is the position in Western Australia?

Western Australia is the one state where the Family Law Act does not govern de facto property. Western Australia has not referred de facto financial matters to the Commonwealth, as the note to section 90RA of the Family Law Act records. WA de facto property and maintenance matters are decided by the Family Court of Western Australia under the Family Court Act 1997 (WA).

The WA requirements are similar but not identical. According to the Family Court of Western Australia, an applicant must show:

at least one party lives in Western Australia on the day the application is made;
the relationship lasted at least 2 years, or, if shorter, there is a child of the relationship under 18 or the applicant made substantial contributions, and failing to make orders would cause serious injustice; and
both parties lived in WA for at least a third of the relationship, or substantial contributions were made while living in WA.

The time limit is also 2 years from the breakdown of the relationship. Superannuation splitting for WA de facto couples is available under Part VIIIC of the Family Law Act.

Finding a family lawyer for a de facto separation

Compare lawyers who regularly act in de facto property matters, and check whether they have an accredited family law specialist, before you send an enquiry. Start with the ranked list of family lawyers in Australia, or compare family lawyers in Sydney, family lawyers in Melbourne, family lawyers in Brisbane and, for WA de facto matters under the Family Court Act 1997 (WA), family lawyers in Perth.