Recognition of unregistered de facto relationships (irrespective of sex or gender identity)

Property disputes and spousal maintenance

In the area of property disputes and spousal maintenance on the breakdown of a relationship, an unregistered de facto relationship must generally have existed for two years or there must be a child of the relationship before the relationship is recognised and a claim for property settlement can be made to the court. (If the former partners have made or make a binding financial agreement under Part VIIIAB Family Law Act 1975, there is no time period for which the relationship must have existed before the agreement can be enforced - see Dividing property and Coming to an agreement.)

Applicable law

De facto relationship property disputes and claims for spousal maintenance are covered by the Family Law Act 1975 (Cth). Prior to 1 July 2010, South Australian law covered these disputes.

In some cases, there may be doubt about whether the old State law still applies, or whether the Family Law Act 1975 (Cth) applies. For example:

If either of these circumstances apply, legal advice should be sought.

What is a de facto relationship under the Family Law Act 1975?

Under the Family Law Act 1975 (Cth) a de facto relationship is one where the couple are not legally married to one another, are not related by family, and where they live together on a genuine domestic basis [s 4AA]. A de facto relationship can exist between two people of different sexes or between two people of the same sex [s4AA(5)(a)].

A de facto relationship can also be recognised where one of the persons in the relationship is legally married to another or is in another de facto relationship [s4AA(5)(b)].

What factors does the Court consider in determining if a de facto relationship existed? [s 4AA(2)]

None of these factors is a necessary requirement [s4AA(3)].

Other factors may also be taken into account (s4AA(4)].

See Jonah & White[2011]FamCA 221 for an example where a de facto relationship was found not to exist (go to Summary).

Conditions that must be met before an application for property settlement can be made [s 90SB and s 90SD and/or s 90SK]

Relationship conditions [s 90SB]

One of the following conditions must exist:

The relationship must have broken down [s 90SM].

In the High Court case of Fairbairn v Radecki [2022] HCA 18 the Court considered whether permanent physical separation (i.e. where one partner moves to an aged care home) and/or the mental incapacity of one partner (i.e. suffering from dementia) constitutes the breakdown of the relationship. The Court found at [42] that:

Separation can occur in such circumstances where, as in this case, one of the partners refuses to make the “necessary or desirable adjustments” in support of the other partner and therefore acts contrary to the other partner’s needs [the Court at [46]].

Geographical requirements [s90SD and/or s90SK]

Certain geographical requirements must also be met in order to make an application for de facto property settlement in the Federal Circuit and Family Court. The question of geographical requirements will only be an issue if the parties have lived in Western Australia.

Time limit for making an application

An application for de facto property settlement must normally be made within 2 years of the end of the relationship [s44 (5) Family Law Act 1975]. An application may be made after this time if the court is satisfied under s44 (6):

What can be dealt with in a property settlement?

De facto couples can make claims under the Family Law Act 1975 (Cth) for:

An application for property settlement or spousal maintenance can be made in the Federal Circuit and Family Court (see Which court?).

Stamp Duty

Stamp duty is not payable on an agreement made under the Family Law Act, or any transfer of property or motor vehicle between former de facto partners pursuant to a Family Law agreement or Family Court order [see Stamp Duties Act 1923 s71CA].