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Are you de facto married?

Understanding de facto relationships, also known as common-law marriage, can be confusing, especially when it comes to your legal rights and responsibilities. It’s natural to feel uncertain about your situation, particularly if you haven’t formally married. This article aims to provide clear and reassuring information about de facto partnerships, helping you navigate this sometimes complex journey.

What is a de facto relationship?

A de facto relationship exists when two people, regardless of gender, live together on a genuine domestic basis and share a committed relationship. Unlike marriage, there’s no formal ceremony or registration required. However, your legal rights and obligations towards each other can be similar to those of married couples if you separate.

There is no specific factor that determines exactly when or whether you and your partner are de facto married. This can be concerning if you break up with a partner and you’re not 100% sure of your position – uncertainty about your legal status as a couple means uncertainty about whether or not your partner has a claim over a share of your property if you separate.

A casual relationship can easily transform into a de facto marriage. If separating, you should be aware of how the law views de facto relationship entitlements.

 How do I know if my partner and I are de facto married?

While there’s no single criterion to determine a de facto relationship, several factors play a role. The longer you’ve been together, the more likely you fall under this category, especially if you’ve cohabitated for two years or more. Sharing expenses, property, and finances also contribute. Additionally, having children together, presenting yourselves as a couple to your community, and jointly caring for children from previous relationships contribute to the recognition of a de facto partnership. In some cases, couples have met enough criteria to be classified as de facto in the eyes of the law without actually living together permanently!

De facto marriage applies to both opposite and same-sex couples. It is also possible to be de facto with one person while married to another or to be in multiple de facto relationships simultaneously.


What makes a de facto relationship?

If you answer yes to some or all of these questions, you may be in a de facto relationship.

      • The existence, or previous existence, of a sexual relationship. Have you been in an ongoing sexual relationship?
      • Whether your belongings are mingled. Do you use each other’s belongings as if they are your own? 
      • Your lease. Are both of your names on the lease?
      • Your finances. Do you share income, or have a joint bank account? Does one of you support the other financially?
      • Shared debts. Have you applied for a loan or credit card together? 
      • The ownership, use, and acquisition of property. Have you jointly purchased real estate or a car? Do you treat your belongings as distinct from each other, or do you use them interchangeably? Do you have belongings that you consider to be shared property? (This includes pets.)
      • The degree of mutual commitment to a shared life. Do you both treat the relationship as long-term? Have you discussed your future together? Have you made changes to your career, or to your plans for yourself, to make the relationship work?
      • Any children of the relationship. Do you have a child, or children together? Do you share care of any children from previous relationships?
      • The reputation of the relationship. How do you present as a couple? Have you identified yourselves to others as de-facto? Have you told friends and family that the relationship is serious?

How do I know if my partner has a claim over my property if we break up – or vice versa?

Just because you are a de facto couple, it does not mean that you have to complete a property split. Your situation needs to be assessed under the 4-step family law process. The court can only make property orders if one or more of the following applies:

  • The relationship in total has lasted over two years. If you break up and then get back together, you may be able to combine both periods you were together.
  • You have a child together. This child does not need to be biologically related to both of you – it could be adopted, or the product of artificial conception using donated genetic material from another person.
  • One or both of you made significant contributions to the other’s property. This will be the case if, for example, one of you has provided substantial financial (or non-financial) support to the other, with the result that their financial position is much better than it otherwise would have been.
  • The relationship is registered. Some couples do this for one partner to access services or entitlements for married couples. De facto relationships can be recorded on state or territory relationship registers.

What if we can’t agree on whether are de facto?

You will need to seek advice from a family law professional if you cannot agree with your spouse or ex about your relationship status. Take our Q&A to get in touch with someone.

What happens if I break up with my de facto partner?

In many cases, the parties will work out the division of property between themselves and go their separate ways. If you would like a step-by-step guide to do this, you could consider following our DIY Separation Toolkit to help you understand how to do it fairly. We always recommend a meeting with a family lawyer once you’ve reached an agreement to make sure you’ve considered everything and your settlement falls within the margin of fair.

If you can’t agree, or one of you feels you’ve been left in an unfair or poor financial position, you could attempt to reach an agreement with the help of a mediator in a program like Guided Separation, or with independent legal advice.

There is a two-year time limit to carry out a property split, but in practice, the Court will often waive this rule if the person filing has a genuine claim. This means property proceedings may be brought well after the end of the relationship.

Possible orders that the Court might make include:

  • a property adjustment, transferring the ownership of property from one party to another, or requiring one party to pay a settlement to the other in the form of cash
  • a superannuation splitting order, causing a portion of one party’s super to be transferred into the other party’s super fund
  • orders for the payment of child support
  • a maintenance order, requiring one party to provide ongoing financial support to the other.

If you would like to speak to one of our network partners please take our free 3-minute Q&A here and you will be connected to the best network member in your area for you.

The Separation Guide aims to make separation and divorce simpler, more manageable and less stressful. To find out more about how one of our Network Members could support your separation, take our free 3-minute Q&A.

Disclaimer
The information in our resources is general only. Consider getting in touch with a professional adviser if you need support with your legal, financial or wellbeing needs.

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