Dating, Cohabitating and Defacto: When It Comes To Your Property And Family Law, What’s The Difference?

by | May 17, 2021 | Family Law

Family dynamics and relationships have evolved quite dramatically in the past few decades. Today, many couples choose to live together instead of, or prior to marriage. Likewise, it is more common for unmarried couples to have children together.

People are often unaware that if they are living with a partner or share children that the Family Law Act may consider them to be in a ‘Defacto’ relationship. Defacto couples (including same same-sex and heterosexual) are entitled to almost the same legal rights and claims when it comes to Family Law matters in relation to property, financial settlements and parenting arrangements as married couples.

A Defacto relationship exists between two people if:

  • They are not legally married to each other;
  • They are not relatives (related by blood); and
  • Are living together as a couple (in a romantic relationship) on a genuine domestic basis.

To determine whether the parties are in a relationship (and not just dating or ‘flat mates’) the following factors are considered:

  • The length of the relationship;
  • Whether the relationship is or was registered;
  • The care and support of any children;
  • The reputation and public knowledge of the relationship (e.g. did friends and family view the parties as being in a relationship?).
  • Whether a sexual relationship exists;
  • The degree of financial dependence or interdependence between the parties;
  • The degree of mutual commitment to a shared life;
  • The ownership and acquisition of assets.

The relationship can be still be considered Defacto without all of the above factors being established. Even if a couple does not intermingle their finances or share any assets they may still be considered to be in a Defacto relationship if they have been living together for a cumulative period of at least two (2) years.

Alternatively, if a couple has children they will automatically qualify as a Defacto couple regardless of whether they are living together or not.

It is also worth noting that a Defacto relationship can still exist even if one of the parties is legally married to someone else.

The Court can make an order for a property settlement or maintenance if any of the four (4) below criteria are met:

  1. The defacto relationship existed for at least two (2) years; OR
  2. There is a child of the relationship; OR
  3. The relationship is or was registered; OR
  4. If there would be a serious injustice to the person applying for the property settlement if no property settlement Order was made.

When deciding to live with a partner we encourage you to think about the legal rights and obligations that may result if you were to separate later on. Remember, that after two (2) years of living with a partner the Australian law will consider you to be practically married!

At Nevett Ford Lawyers, we are committed to working with systems both new and established to deliver great outcomes for our clients. Call our best family lawyers in Melbourne on 03 9614 7111 or email melboune@nevettford.com.au to discuss your family, relationship & property settlement and how we can help.