The Relationships Register Act 2016 (SA), which came into operation on 1 August 2017, makes it possible for a couple (irrespective of their sex or gender identity) to register their relationship with the office of Births Deaths and Marriages in South Australia.

The Act sets out who may apply to register a relationship, what needs to be included with the application, when the registration may take effect, as well as the procedure for revoking the registration of a relationship.

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

Summary of areas:

State Domestic Partner laws where there is a child of the relationship

In situations where there would normally be a three year period before the relationship is recognised, if there is a child of the relationship, then this period does not apply and the relationship is recognised as a domestic partnership. See Three Year Time Requirement.

Applying for Legal Aid

When applying for Legal Aid, the financial position of any 'financially associated person' is considered, as well as that of the applicant. A financially associated person will usually include a de facto partner. There is no set period for which the applicant must have been in a relationship with a financially associated person. See Applying for legal aid.

Centrelink Payments and Benefits

The Social Security Act 1991 (Cth) states that whether or not an unregistered de facto relationship exists depends on all the circumstances of the relationship, including the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, any sexual relationship between the people and the nature of the people's committment to each other. If a couple live together, they will most certainly be considered to be in a de facto relationship, albeit an unregistered one.

A de facto relationship cannot be said to exist between two people, if they are below the age of consent in the State or Territory in which they live, if they are in a prohibited family relationship, or if they are living separately and apart on a permanent or indefinite basis [s 4]. The couple must generally be said to be living separately and apart, in both a physical and emotional sense, on a permanent and indefinite basis [see Guide to Social Security Law 2.2.5.20].

Registered relationships are automatically recognised.

For the purposes of assessing a person' s entitlement to social security payments, the income of a person's de facto partner is taken into account.

Similarly, entitlements to payments and benefits are extended to partners. Possible payments and benefits include:

Children of both opposite sex and same sex couples are covered for the purposes of social security and family assistance.

Tax

De facto relationships are recognised under taxation law as being between two people of any sex, who llive together on a genuine domestic basis as a couple. Same sex couples have been treated the same way as opposite sex couples and married couples for tax returns from 2009-2010 onwards. Registered relationships are automatically recognised.

Reproductive technologies

As of 21 March 2017, reproductive technologies are accessible if it would be “unlikely that, in the person’s circumstances, the person will become pregnant other than by assisted reproductive treatment” [see Assisted Reproductive Treatment Act 1988 (SA) s 9(1)(c)(i)]. The previous requirement of infertility has been removed. That requirement had acted to prohibit fertile same-sex couples from accessing reproductive technologies. Prior to 2010, it was also a requirement that those seeking treatment be either married or in a de facto relationship of at least 5 years duration. There is not now any requirement of this nature.

Court orders for the care of children

Children have the same rights whether their parents are married or in a registered relationship or not. They are entitled to be cared for and to be supported. When a parent dies, children are entitled to share in the property if there is no will, or to challenge a will that is unfair. If parents separate, parents can decide together how to care for their children. A family counsellor or mediator can often help reach agreement. If parents cannot agree, the Federal Circuit and Family Law Court can make orders about the care of children - see Arrangements for children. Parenting orders for the children of opposite sex and same sex couples are decided in the same way as if the parents were married.

Child Support

A person caring for a child born outside marriage can claim child support from the other parent in the same manner as for a child of a married relationship. Where the child is in the care of the mother and the father's name is not on the birth certificate, and he does not sign a statutory declaration to formally admit paternity, it will be necessary to first establish paternity in the Family Court.

A separated parent from a same-sex relationship can apply for child support from a co-parent who is recognised as a parent under the Family Law Act 1975 (Cth).

Centrelink may also require parents who are receiving Family Tax Benefit to apply for an assessment of child support payable by the co-parent.

It is suggested that you contact the Child Support Unit at the Legal Services Commission of South Australia (08 8111 5576) if you wish to make an application for child support following the breakdown of a relationship.

Intervention Orders

De facto or former de facto partners with a relationship of any length of time may apply for an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009 (SA). Abuse by a current or former partner is defined as domestic abuse and a de facto relationship meets the definition of a ‘relationship’ under the Act [s 8(8)]. See: Intervention Orders.

Agreements about property

It is possible to make a binding financial agreement under part VIIIAB of the Family Law Act 1975 (Cth) in anticipation of entering a de facto relationship or during a de facto relationship or at the end of a relationship. For the agreement to be binding, certain requirements must be followed - in particular, both parties must receive independent legal advice. For the agreement to take effect following the breakdown of the relationship, a separation declaration must be made [s 90UF].

Financial agreements under the Family Law Act 1975 (Cth) can deal with the property and financial resources of the parties, and maintenance of either of the parties.

Making a written agreement clarifying the property owned by each partner and details of who is to keep which items, or how items will be divided, if the relationship ends is a prudent step. Disputes can often be prevented by being clear in advance.

Future disputes can be minimised by not putting property into joint names unless each person contributes equally, and by keeping a record of who pays for items purchased, as well as keeping receipts. Also, avoid making statements that property is 'ours' or 'shared' unless that is your real intention.

It is best to make an agreement before living together, but it can also be done during the relationship or after it has ended.

Stamp Duty

Spouses and domestic partners are exempt from stamp duty on the:

[Stamp Duties Act 1923 s71CB]

Domestic partners are defined for the purposes of stamp duty in the same was as they are defined under the Domestic Partners Property Act 1996 (SA) to include someone who is about to enter into or has been in a registered relationship or someone who is about to enter or has lived in a close personal relationship, without any time requirement.

Criminal Code

The Criminal Code 1995 (Cth) adopts the definition of a de facto relationship from the Acts Interpretation Act 1901 (Cth). Under that Act, a de facto relationship is defined broadly and no single factor, including the duration of the relationship, is determinative [s 2F].

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

For an unregistered de facto relationship to be recognised under the Migration Act 1958 (Cth), the partners must have been in the relationship for a period of at least 12 months before lodging the visa application.

However, the 12 month relationship requirement can be waived if there are compassionate and compelling circumstances, for example, if there is a dependant child of the relationship or de facto relationships are illegal in the country in which one or both of the couple reside.

The 12 month relationship requirement does not apply where:

LGBTIQ+ families

LGBTIQ+ de facto couples and their children are recognised in the definition of ‘members of the family unit’ for visa purposes, in the same way that heterosexual de facto partners and their children are recognised.

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].

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

Summary of areas:

All the situations where an unregistered de facto relationship must have existed for three years to be recognised, unless there is a child of the relationship (when there is no time requirement), come under South Australian law. In these situations, the relationship must meet the alternative definition of a 'domestic partnership' under the Family Relationships Act 1975 (SA), see below.

Note that companion relationships are also included in the definition of a domestic partnership and are thus recognised in these areas of South Australian law, see Companion relationships and property disputes.

What is a domestic partnership?

The definition of a domestic partnership for most areas of South Australian law is set out in the Family Relationships Act 1975 (SA) [s 11A]. Under this Act, a 'domestic partnership' is two adults (whether or not related by family and irrespective of their sex or gender identity) in either:

A domestic partnership includes couples of any sex or gender identity, and companion relationships. Companion relationships can include relationships between people who are related to each other as well as where people are not related and not in a sexual relationship, but are 'living together as a couple on a genuine domestic basis'.

Domestic partnerships does not include marriage or situations where care is provided by one person to the other for fee or reward.

If the unregistered de facto relationship is less than 3 years in duration and there are no children

If the relationship was for less than three years and there is no child of the relationship, either of the former partners may seek a declaration from the Court that they were domestic partners, on the basis that they were living together in a close personal relationship and that the interests of justice require that a declaration be made. This application is made under section 11B of the Family Relationships Act 1975 (SA), which sets out what the Court must consider when making its decision. An application for a declaration must be in the form of an Originating Application, and supported by an affidavit identifying the use the applicant intends to make of the declaration;the names and addresses of anyone whose interests may be affected by the declaration [Uniform Civil Rules 2020 (SA) r 238.1-3] and must be served on all of these persons.

What steps have to be taken to have an unregistered de facto relationship recognised?

For most legal purposes, partners do not have to take any formal step to have the relationship recognised. Once criteria are met, the relationship is recognised automatically. See No time requirement for recognition of an unregistered de facto relationship. If there is doubt, the court can be asked to make a declaration as to whether two people were, on a given date, domestic partners.

For some legal purposes, outlined below, a formal declaration from a Court is required before an unregistered de facto relationship can be recognised as a domestic partnership.

Inadequate provision in a will

A spouse or domestic partner who has not been adequately provided for under the deceased partner's will, may apply under the Inheritance (Family Provision) Act 1972 (SA), for a sum of money from the deceased's estate [s 6(a)]. The definition of a domestic partner under this Act includes a person who was in a registered relationship with the deceased under the Relationships Register Act (SA), or a corresponding law registered relationship, at the time of the deceased's death, or at some earlier date.

Before this claim can be made, a partner to an unregistered de facto relationship must first obtain a declaration from the Court that, under the Family Relationships Act 1975 (SA), he or she was a 'domestic partner' on the date of death, or at some earlier date.

Where there is no will

If the deceased did not leave a will, a spouse or domestic partner is entitled under the intestacy provisions of the Administration and Probate Act 1919(SA) [s 72h(1)] to share in the distribution of the estate. The definition of a domestic partner under this Act includes a person who was in a registered relationship with the deceased under the Relationships Register Act (SA), or a corresponding law registered relationship, at the time of the deceased's death.

Before this claim can be made, a partner to an unregistered de facto relationship must first obtain a declaration from the Court that, under the Family Relationships Act 1975 (SA), he or she was a 'domestic partner' on the date of death.

Death caused by a negligent act

If the death was caused by the negligent act of a third party (for example, in a road accident), the surviving partner, as defined under the Family Relationships Act 1975 (SA), may claim damages from the third party. These damages will cover both economic loss (that is, loss of future financial support) and solatium (emotional loss).

Before this claim can be made, a partner to an unregistered de facto relationship must first obtain a declaration from the Court that the person was a 'domestic partner' on the date of death [see Civil Liability Act 1936 (SA)].

State superannuation

If the deceased was a contributor to a State superannuation scheme, the putative spouse (meeting a similar definition to that under the Family Relationships Act 1975 (SA) i.e. registered relationship, three year time requirement or child born of the relationship) may apply to the administrators of the scheme for the spouse's pension [see, for example, Southern State Superannuation Act 2009 (SA) s 7].

Before this claim can be made, a partner to an unregistered de facto relationship may first need to obtain a declaration from the Court that the person was a 'putative spouse' at the relevant time.

Death caused by crime

Under the Victims of Crime Act 2001 (SA) a domestic partner, as defined under the Family Relationships Act 1975 (SA), is able to claim compensation for the death of their partner resulting from a homicide. If a partner died as the result of a criminal injury the surviving partner has a right to be represented as a dependent of the deceased in order to collect compensation.

Although it is necessary for an unregistered de facto relationship to meet the alternative definition under the Family Relationships Act 1975 (SA), namely the three year time or birth of a child requirements, it may not be necessary to obtain a declaration under that Act [see Victims of Crime Act 2001 (SA) s 4].

Workplace death

If an employee is killed at work and their partner, as defined under section 4(1) of the the Return to Work Act 2014 (SA), or the employee's children were wholly or partially dependent on the employee, then the partner and children can make a claim under the Return to Work Act 2014 (SA) [ss 59,61].

The definition of a domestic partner under the Return to Work Act 2014 (SA) is the same as that under the Family Relationships Act 1975 (SA), except for the following additional provision: if the person has been living with the worker for a substantial part of the preceding three or four years and Return to Work considers it is fair and reasonable that the person be regarded as the domestic partner of the worker for the purposes of the Act, then the person can make a claim as a domestic partner.

For those who were in an unregistered de facto relationship that is not covered by the Family Law Act 1975 (Cth) (see Two year time requirement), the following principles apply. Note that there is no longer any state legislation that covers de facto relationships and property issues.

Property held in joint names

If the property in dispute is in joint names, the Court will usually order that the property be divided equally unless it can be shown that one person should receive more. If it is in the name of one partner only, there are several legal concepts that can be used by the other partner to support a claim to an interest in the property. Whichever remedy, or combination of remedies, is used by a partner who is seeking to enforce property rights, each case finally depends on its facts. The following list sets out the most common of the possible remedies. The law in this area is extremely complex and legal advice should be sought by anyone who wants to make a claim under any of these arrangements.

Property held for the benefit of the other party

If one partner clearly states that he or she holds certain property for the benefit of the other, this amounts to an express declaration of trust. This is not effective as far as real property (a house or land) is concerned unless the declaration is in writing. The only exception is in cases where the lack of writing would amount to equitable fraud.

There is an implied trust where property is held by one person with an unexpressed or presumed intention that some other person has an interest in it - for example, where, on the purchase of property, some of the purchase price is paid by someone other than the purchaser. To find out if there is an implied trust in a particular case, it is necessary to examine:

A constructive trust is difficult to define. It could be said that it is a trust imposed by the court in order to satisfy the demands of justice and good conscience, without any reference to the express or presumed intentions of the person involved. Courts have found that a constructive trust exists in some cases where one party worked on building or renovating a house, but not in others where there was responsibility for ordinary housework and maintenance. Decisions have gone either way depending on the particulars of each individual circumstance.

Conferring property interests on the other party

Partners can confer property interests on one another by the use of an express contract. Express contracts should be in writing and conform with the normal laws of contract. Sometimes a court will find that there was an implied contract. The court presumes that, as reasonable people, the partners would have agreed to a certain contract. Its use is limited to appropriate situations.

Recognising money spent on property

A partner may rely on the concept of proprietary estoppel in support of a property claim where the partner has spent money or otherwise disadvantaged him or herself:

Gifts

Legally binding gifts between partners can be made in three ways:

Mediation services

The Family Mediation Service at Relationships Australia, Centacare, or private mediators can assist in resolving de facto property disputes. There is usually a fee for these services.

A companion relationship is a relationship between two adults living together as a couple on a genuine domestic basis, but who are not married or in a de facto relationship. They can be related by family and be of the same or opposite sex. A relationship where one person provides the other with domestic support and/or personal care for payment is not included in the definition.

Property disputes between companion couples where the relationship has existed for more than three years are covered by the Domestic Partners Property Act 1996.

If a former partner wishes to apply to the court to resolve a dispute over property, all of the following requirements must be met [Domestic Partners Property Act 1996 (SA) s 9(1)]:

The Act only applies to companion relationships that ended on or after 1 June 2007.

For companion relationships not covered by the Domestic Partners Property Act 1996 (SA), rights to property on the breakdown of a relationship are governed by the ordinary rules of property, trusts and contract.

Time limits

Applications must be made within one year after the end of the relationship unless the court, after considering the interests of both parties, is satisfied that an extension is necessary to avoid serious injustice to the applicant [Domestic Partners Property Act 1996 (SA) s 9(3)].

What is property?

The type of property that a court can consider is broadly defined and includes:

[Domestic Partners Property Act 1996 (SA) s 3]

Which court?

Given the potential future size of superannuation entitlements it is very difficult to determine in which court to issue proceedings.

If the total amount is $6 000 or less [Domestic Partners Property Act 1996 (SA) s 13] the application is a minor civil action in the Magistrates Court [note that this section has not been amended to reflect changes in jurisdictional limit of the Magistrates Court minor civil action jurisdiction - although this jurisdiction has a limit of $12 000 as of 1 August 2016, only domestic partnership matters up to $6 000 are treated as minor statutory proceedings].

If proceedings were commenced before 1 July 2013, or if a claim arose before 1 July 2013 (that is, if the relationship ended before that date) then claims up to $80 000 are dealt with by the general civil division of the Magistrates Court.

For claims arising after 1 July 2013, amounts up to $100 000 are dealt with in the Magistrates Court.

Larger claims may be taken in the Supreme or District Courts [Domestic Partners Property Act 1996 s 3(1)].

Principles used by the court in property disputes

The Domestic Partners Property Act 1996 does not give a person an 'automatic' share of their partner's property. There are a number of considerations that a court will consider when determining what entitlements a person has.

A court has powers [Domestic Partners Property Act 1996 (SA) ss 11,14] to consider matters relevant to the just and equitable division of property and in particular will consider:

When deciding the division of property, the court may make orders it considers necessary to divide the property of either or both of the partners between them in a way that is just and equitable [Domestic Partners Property Act 1996 (SA) s 10(1)]. For example the court may make orders:

As far as practicable the court will attempt to finalise all matters to avoid further proceedings between the parties [Domestic Partners Property Act 1996 s 12]. However, the Act does not exclude other forms of remedy or relief [Domestic Partners Property Act 1996 s 16].

Where one of the partners dies, an application for the division of property may be made or continued by or against the legal personal representative of that partner [Domestic Partners Property Act 1996 s 9(4)]. This application may only relate to property that is undistributed at the date of the application.

At the conclusion of a court case the loser is often ordered to pay the winner's legal costs. Although the Domestic Partners Property Act 1996 (SA) does not specifically deal with the question of costs, the court may make orders for costs at the conclusion of a case.