We want to provide you with thoughtful information during this difficult time of marital breakdown. This article is designed to help you gain an in-depth understanding of the legal basis for a de facto marital relationship, what evidence to collect, and property division, thus saving you the time and financial cost of consulting a lawyer.

(i) Recognition of de facto marital relations

As defined in section 4AA of the Family Law Act 1975, a de facto marital relationship is a relationship in which two persons are not legally married and are not relatives, but live together as husband and wife on a genuine family basis. To determine whether there is a de facto marital relationship, the court will consider a combination of the following factors on a case-by-case basis, rather than relying on any one factor alone:

1. Duration of the relationship: In general, the longer the relationship, the more likely it is to be recognized as a de facto marital relationship, but there is no fixed time criterion. If the relationship is short, but there is other strong evidence, it may also be recognized as a de facto marital relationship.

2. The nature and extent of co-habitation: The court will consider whether you and your partner are co-habiting, and the frequency and duration of co-habitation. If you and your partner do not live together, but there is other evidence that you are a couple, a de facto marital relationship may also be found.

3. Whether a sexual relationship exists: The court will consider whether you and your partner have a sexual relationship, and the frequency and quality of the relationship. If you and your partner do not have a sexual relationship, but there is other evidence that you are a couple, this may also be recognized as a de facto marital relationship.

4. The degree of financial dependence or interdependence and the financial support arrangements between them: the court will consider whether you and your partner have shared financial goals and responsibilities and how you manage and allocate your income and expenditure. If you and your partner have joint bank accounts, credit cards, loans, investments, insurance, wills, etc., then these are important evidence of your financial relationship.

5. Ownership, use and access to property: The court will consider whether you and your partner have property in common and how you have purchased, used and maintained your property. If you and your partner have joint property, vehicles, furniture, jewelry, collectibles, etc., then these are important evidence of your property relationship.

6. Degree of mutual commitment to a life together: The court will consider whether you and your partner have a long history of loyalty and caring for each other and how you have expressed and fulfilled your commitment. If you and your partner have introduced each other as partners, attended social events together, taken care of each other, given each other gifts, etc., then these are all important evidence of your committed relationship.

7. Whether the relationship is registered under the laws of a state or territory as a prescribed type of relationship: the court will consider whether you and your partner have registered your relationship under the laws of a state or territory, such as a partnership or civil union. If you and your partner have a Certificate of Relationship Registration, then this is the most direct evidence of your relationship.

8. Child maintenance and support: The court will consider whether you and your partner have children in common and how you raise and support your children. If you and your partner have children in common, or if you have responsibilities and duties towards each other’s children, then this is important evidence of your relationship.

9. Reputation and public aspects of the relationship: The court will consider whether you and your partner have acted in public as a couple and how your relationship is perceived by your friends, family and neighbors. If you and your partner are public about your relationship on social media, have shared photos, testimonies from friends, family and neighbors, etc., then these are important pieces of evidence of your relationship.

(ii) Evidence collection

Both the quality and quantity of evidence is important as the court will look at the evidence to determine the existence and nature of the de facto marital relationship, as well as the property and financial position of you and your partner. You will need to provide as much evidence as possible to prove the existence and breakdown of the de facto marital relationship between you and your partner, as well as the property and financial situation between you. This evidence may include:

1. You and your partner’s Relationship Registration Certificate (if you have one): If you and your partner have registered your relationship in one of Australia’s states or territories, you can apply for a copy of your Relationship Registration Certificate from your local registry or provide your registration numbers, which is the most direct evidence of your relationship, and it is important that you provide it to the court if you have it.

2. Proof of your and your partner’s shared address, such as a lease agreement, utility bills, mail, etc.: You can provide proof of the time period and frequency of your and your partner’s residence at the same address, such as your lease agreement, utility bills, mail, courier slips, etc., showing that your names and addresses are the same. You can also provide testimony from your neighbors or landlord that you lived together. If you and your partner do not live together, you can also provide other evidence of your relationship, such as records of your visits to each other, photographs of your luggage or belongings in each other’s homes, etc.; this is important to prove that you live together.

3. Proof of your and your partner’s sexual relationship, e.g., medical records, contraception, testimony from friends and relatives: You can provide proof that you and your partner are having a sexual relationship, e.g., your medical records, contraception, testing for STDs, records of pregnancies or abortions, etc., showing your sexual health status and plans. You can also provide testimony from your friends and family that your sexual relationship was real and ongoing. If you and your partner do not have a sexual relationship, or do not want to provide evidence of this, you may provide other evidence such as your emotional communication, common interests, mutual trust and respect, etc.; this is an ancillary basis for proving the nature and extent of your relationship, but is not necessary because the court does not necessarily require a sexual relationship to find a de facto marital relationship.

4. Proof of your and your partner’s financial relationship, e.g. bank accounts, credit cards, loans, investments, insurance, wills, tax returns, etc.: You can provide proof that you and your partner have a joint financial relationship, e.g. your joint bank accounts, credit cards, loans, investments, insurance, wills, etc., to show that your incomes and expenditures are shared, and that you have financial responsibilities and liabilities to each other. You may also be able to provide your tax returns showing whether or not you are filing for each other as spouses or partners; this is an important basis for proving your mutual commitment and dependence on each other financially.

5. Proof of your and your partner’s property, such as records of purchase, use and maintenance of real estate, vehicles, furniture, jewelry, collectibles, etc.: You can provide proof that you and your partner have joint property, such as your real estate certificates, vehicle registration certificates, invoices for furniture, appraisal certificates for jewelry, certificates for collectibles, etc., to show that your property was jointly purchased, used and maintained, and that you have a common understanding of the value of the property and its distribution. There is a consensus on the value and distribution of the property. You can also provide an inventory of your property showing the type, quantity, location and condition of your property; this is an important basis for proving your mutual interests and rights in the property.

6. Proof of your and your partner’s commitment to a life together, e.g. introducing each other as partners, attending social events together, taking care of each other, giving each other gifts, etc.: You can provide proof that you and your partner have a commitment to a life together, e.g. that you have introduced each other as partners, attending social events together, taking care of each other, giving each other gifts, etc., to show that your relationship is sincere and stable and that you have affection and respect for each other. You can also provide your communication records showing your relationship history, frequency of interactions, common topics of conversation etc. If your relationship with your partner is short-lived or unstable, you may be able to provide other evidence, such as records of your correspondence, travel plans, mutual support and assistance, etc.; this is ancillary to, but not conclusive of, your mutual commitment, as the court will take into account all factors, not just the subjective wishes of the parties.

7. Proof of your and your partner’s children, e.g. birth certificates, maintenance agreements, education and medical expenses, etc.: If you and your partner have children together, you can provide proof of your children, e.g. birth certificates of your children, maintenance agreements, education and medical expenses, etc., to show that you care for and are responsible for your children, and that you have a common understanding of the custody and interests of your children. You can also provide photos, videos, drawings, homework, etc. of your children that show your children’s growth and well-being; this is an important proof of your mutual support and collaboration in your daily lives.

8. Proof of the reputational and public aspects of your relationship with your partner, such as social media, photographs, testimonies from friends, relatives and neighbors, etc.: You can provide proof of the reputational and public aspects of your relationship with each other, such as your social media, photographs, testimonies from friends, relatives and neighbors, etc., to show that your relationship is open to the public, and that you have the approval and support of your family, friends, community, organizations, etc. You can also provide evidence of your community activities, volunteerism, charitable donations, etc. to show your involvement and contribution to the community; this is an adjunct to proving the social aspect of your relationship, but is not necessary as the court does not require a public relationship to find a de facto union.

9. Proof of the breakdown of your relationship with your partner, e.g. date of separation, reason for separation, contact details after separation, etc.: You can provide proof of the breakdown of your relationship with your partner, e.g. the date of your separation, the reason for separation, contact details after separation, etc., to show that your relationship has become unsustainable, and that you have a common understanding of the decision to separate and the consequences of the separation. You can also provide your separation agreement, mediation records, legal advice, etc., to show that you have reasonable arrangements and negotiations on the process and results of the separation; this is an auxiliary basis for proving the termination of your relationship, but it is not necessary, because the court does not require evidence of separation in order to find a de facto marital relationship.

(iii) Division of property

Only if you and your partner are recognized as being in a de facto relationship are you entitled to file for property division.

Whether or not you and your partner’s property division will require court involvement is a practical matter as it will impact on your time and costs. Under family law, there are three ways for you and your partner to divide your property:

1. You and your partner can discuss the distribution of your property, and if you can reach an agreement, there is no need for the court to intervene.

2. If both parties have already reached an agreement but want more protection you can go to court and apply to turn your agreement into a court consent order.

3. If the parties cannot reach an agreement, you can apply to the court for a financial order.

Generally speaking, self-negotiation is the quickest and most cost-effective method, but you need to make sure that your agreement is fair and reasonable and enforceable.

With this information, we hope to help you gain the knowledge and preparation necessary during this difficult time so that you are ready for future legal action. After all, every experience is part of growing up.

This is not formal legal advice and you should consult a licensed attorney before signing any agreement or appealing to the courts.

Disclaimer: This page was last revised in 2024 and is intended to provide a general informational reference and does not constitute legal advice on any particular case. The content of this page is protected by the Platform’s copyright. The author and the Platform have compiled the content of this page based on real-time publicly available sources of information that they believe to be reliable, but have not independently verified this information. Please note that any changes to the information on this page will be made without notice. The author and the Platform expressly disclaim any liability to any person or entity for the consequences of any action or inaction taken in reliance on the content of this page.