De facto relationships 

Not every couple who separates has married, and Australian family law devotes real attention to when an unmarried couple's relationship is treated the same way as a marriage for legal purposes. This article explains how a de facto relationship is recognised, what it gives a couple access to, and why Western Australia again needs separate attention.

A factual assessment, not registration

Australian law does not generally require a couple to register their relationship to be recognised as de facto partners. Some jurisdictions offer a voluntary relationship registration scheme, and registration can be useful evidence, but recognition for family law purposes does not depend on it. Instead, whether a de facto relationship exists is a factual, multi-factor assessment against the statutory definition: the court looks at the real circumstances of the couple's life together, not at any formal step they did or did not take.¹

Relevant factors commonly include the duration of the relationship, whether the couple lived together, the degree of financial dependence or interdependence and any arrangements for financial support, ownership and use of property, whether there is a sexual relationship, the degree of mutual commitment to a shared life, whether the relationship was registered under a state or territory scheme, the care and support of children, and the reputation and public aspects of the relationship. No single factor is decisive, and a relationship can be found to exist even where some of these features are absent; the court weighs the whole picture.

This matters for problem-solving: a student should not treat cohabitation alone as sufficient, nor treat its absence as fatal. Couples can be found to be in a de facto relationship without living together full-time, and conversely two people sharing a home is not, by itself, proof of a de facto relationship.

Access to the same frameworks, subject to eligibility

Once a de facto relationship is established, partners have access to broadly the same property settlement framework described elsewhere in this module, and to the same parenting framework where children are involved — the underlying tests for contributions, future needs, and the best interests of the child apply in substantially the same way as for married couples.

Access to the family law property jurisdiction for de facto couples is, however, subject to eligibility thresholds that do not apply to married couples in the same way. Commonly, a de facto couple must show the relationship met a minimum duration (typically expressed as a period of years, with recognised exceptions, for example where there is a child of the relationship or where one party made substantial contributions), or that the relationship was registered, before the property jurisdiction is available. A student should recognise that establishing the existence of a de facto relationship and establishing eligibility to bring a property claim are two separate questions, both of which need to be satisfied.

The Western Australian exception, again

As with property settlement generally, Western Australia is a distinct exception worth flagging specifically here. Because Western Australia did not refer the same powers to the Commonwealth, de facto property matters there are dealt with under Western Australia's own state family law framework rather than the Commonwealth Family Law Act, even though that state framework closely mirrors the Commonwealth scheme in substance. This is particularly significant for de facto property matters specifically, since it is one of the clearest points at which a student must actively check which framework governs before applying any rule about eligibility thresholds or the property settlement approach. Do not assume the Commonwealth Act's precise wording applies to a Western Australian de facto couple without saying so explicitly.

Applying this in a problem question

1. Ask whether the couple is married or unmarried; if unmarried, move to the de facto assessment rather than assuming a marriage-equivalent framework applies automatically.
2. Work through the multi-factor indicia holistically — do not treat cohabitation or its absence as decisive on its own.
3. Separately check any eligibility threshold (such as relationship duration or a child of the relationship) before assuming the property jurisdiction is available.
4. Flag whether the facts arise in Western Australia, and if so, note that its own state framework applies rather than the Commonwealth Act.
5. Once eligibility is established, apply the same property or parenting analysis used for married couples.