FAQs: What is a de facto relationship and what are my rights when I am in one?

Under the Family Court Act 1997 (WA) a person is considered to be in a de facto relationship if the couple are living together in a marriage-like relationship yet are not legally married to each other and are not related by family.

In a break up, de facto couples (including same sex couples) have the same rights as married couples except for the splitting of superannuation assets.

What is a de facto relationship?
What is a de facto relationship?

In Western Australia, a de facto relationship is a marriage-like relationship between two people for a minimum period of two years.

A different definition of a de facto relationship applies in other jurisdictions in Australia.

When am I in a de facto relationship?
When am I in a de facto relationship?

It can be difficult to determine precisely when you are in a de facto relationship.

The following factors are indicators of whether or not a de facto relationship exists:

  • The length of the relationship.
  • Whether the two persons have resided together.
  • The nature and extent of common residence.
  • Whether there is, or has been, a sexual relationship between them.
  • The degree of financial dependence or interdependence, and any arrangements for financial support between them.
  • The ownership, use and acquisition of their property (including property they own individually).
  • The degree of mutual commitment by them to a shared life.
  • Whether they care for and support children.
  • The reputation and public aspects of the relationship between them.
Can a same sex relationship be a de facto relationship?
Can a same sex relationship be a de facto relationship?

Yes.  Under the Interpretation Act 1984 (WA) and the Family Court Act 1997 (WA) a de facto relationship is any relationship (other than a legal marriage) between two people who live together in a marriage-like relationship, including same sex couples.

Is it possible to be in more than one de facto relationship?
Is it possible to be in more than one de facto relationship?

Yes. The Family Court Act 1997 (WA) recognises that a person can be in several de facto relationships at the same time.

Is it possible to be in a de facto relationship when I’m married to someone else?
Is it possible to be in a de facto relationship when I’m married to someone else?

Yes. The Family Court Act 1997 (WA) recognises that it is possible for someone who is married to be in a de facto relationship with someone else at the same time.

When can a court make an order in relation to a de facto relationship?
When can a court make an order in relation to a de facto relationship?

The Family Court may only make an order if it is satisfied that:

  • There has been a de facto relationship between the partners for at least 2 years.
  • There is a child of the de facto relationship who is under 18.
  • There would be a serious injustice to the partner applying for the order if one were not made.
Do de facto couples have any rights?
Do de facto couples have any rights?

Yes. The Family Court Act 1997 (WA) gives legal rights to those in de facto relationships including disputes regarding children, property settlements and financial maintenance.

Are de facto couples’ rights the same as married couples’ rights?
Are de facto couples’ rights the same as married couples’ rights?

De facto couples can access the same range of remedies in the Family Court as those available to married couples.

The only exception is superannuation. While superannuation can be included in the property pool and therefore divided up for married couples, it is treated as a financial resource for de facto couples.

Can I do anything to protect my assets from a de facto partner?
Can I do anything to protect my assets from a de facto partner?

Yes.  You can enter into a financial agreement (also colloquially known as a “prenup”).  This is an option available for both married couples (and couples intending to marry) or those who are contemplating living together in a de facto relationship.

A financial agreement is a private agreement which is not sanctioned by the Family Court, which can be entered into before, during, or after a marriage or de facto relationship.

How can a Family Lawyer assist you in a de facto relationship?
How can a Family Lawyer assist you in a de facto relationship?

Lavan’s Family Law team can advise on steps to take before or during a de facto relationship to prevent future arguments in the event the relationship breaks down.

We also assist parties following the breakdown of a de facto relationship in negotiating a property settlement, making proper arrangements for the children of the relationship and representing parties in the Family Court if necessary.