Part VIII AB, Subdivision C of the Family Law Act 1975 sets out the declarations about the existence of de facto relationships. People in de facto relationships are couples who live on a genuine domestic basis while having sexual relations.
However, Australia will only recognise de facto relationships if it has lasted for at least 2 years. A de facto relationship still applies either to same-sex or opposite-sex couples. The Federal Circuit and Family Court of Australia deals with child-related issues of de facto couples the same way they deal with married couples. In order to register a de facto relationship in NSW, both partners must meet requirements such as:
- Being over 18 years of age
- Not being married to each other or to anyone else
- Not having their relationship registered under the
Once a couple has met these basic requirements, they may apply online or in person to the Registry of Births Deaths & Marriage or the nearest Service NSW Centre. Additionally, just like married couples, de facto couples may also go through legal matters like separation and property settlement. However, it’s important to first discuss the declarations about the existence of de facto relationships.
The Family Law Act and De Facto Relationships
The Family Law Act governs all family law matters in Australia. This includes matters that concern people in de facto relationships. They are given almost similar rights to married couples should legal matters arise. Section 4AA of the Family Law Act also sets out factors for assessing de facto relationships such as the:
- Duration of the relationship
- Nature and extent of common residence
- Existence of a sexual relationship
- Degree of financial dependence or interdependence and arrangements for financial support.
- Ownership, use, and acquisition of the couple’s property
- Degree of mutual commitment to a shared life
- Possibility of the relationship registered under a prescribed law of a state or territory
- Care and support of any child/children
- Reputation and public assets of the relationship
Declarations About the Existence of De Facto Relationships: Proof of Identity
Couples who want to register their de facto relationship may provide proof of identity under four categories.
Category 1 and Category 2
1:
- Australian birth certificate
- Australian citizenship certificate
- New Zealand citizenship certificate
- ImmiCard
- Certificate of Registration by Descent
2:
- Australian driver’s licence
- Australian passport
- Firearms licence
- Foreign passport
- Proof of age card or photo card issued by an Australian State or Territory
Category 3
- Medicare card
- Private health card
- Centrelink pensioner concession card or other entitlement cards
- Australian Department of Veterans Affairs card
- Security licence
- Student or tertiary education card
Category 4
- Council rates notice issued in last 12 months
- Recent electricity, water, or gas account bill with current residential address issued within last 3 months
- Lease agreement
Section 90RD, 90RE, 90RF: Declaring the Existence of a De Facto Relationship
A court may make declarations about the existence of de facto relationships if there is an application made under section 90SE, 90SG, 90SM, or a declaration made under Section 90SL. Moreover, the court may also make a declaration if there is a claim made that there is a de facto relationship that existed between a couple. Below is a table that discusses each section’s contents in relation to declaring de facto relationships.
| Section 90SE | Similar to spousal maintenance, higher-earning people in de facto relationships must provide de facto maintenance to their lower-earning partner. This is true if there is a breakdown of a de facto relationship. |
| Section 90SG | In relation to Section 90SE, courts may order immediate de facto maintenance if possible. Courts will only make a de facto maintenance order if the concerned de facto couple meets certain jurisdictional requirements. |
| Section 90SM | Courts may order the alteration of property interests during property settlement proceedings for de facto couples |
| Section 90SL | Courts may declare the title or rights for de facto couples in respect of a property after the breakdown of a relationship. Geographical requirements are set out in Section 90SK and a few more requirements to satisfy the court are set out in Section 90SB. |
According to Section 90RE, a declaration made under Section 90RD has effect as a judgement of the court. A declaration made under Section 90RD has effect according to its terms. Section 90RF mentions that any party to the primary proceedings may apply for declarations about the existence of de facto relationships.
Section 90RG: Geographical Requirement
There are also geographical requirements when discussing the declarations about the existence of de facto relationships. Section 90RG states that a court may only make a declaration under section 90RD if one or both persons were ordinarily residents of a participating jurisdiction. This applies if the declaration was made when the primary proceedings commenced.
Section 90RH: Setting Aside Declarations
Can a court vary, set the declaration aside, or set the declaration aside and make another declaration for the existence of a de facto relationship? Yes. However, the court must be satisfied that the declaration has affected a person in the primary proceedings because of:
- A fact or circumstance that was not disclosed to the court
- The application for the declaration was made without the affected person’s knowledge
A court’s decision to set aside a declaration has no bearing on anything done in reliance on the declaration while it was still in effect. If a court sets aside a declaration, the court may make such orders it considers just and equitable for the affected person such as:
- An order for the transfer of property
- An order that will put any affected person in the same position where the declaration would have not been made.
Importance of Seeking Legal Advice
Most unmarried couples may think that they can solve legal disputes easily. However, this article has proven that there are a lot of legal steps to take to prove a de facto relationship. Moreover, some couples will need to go through property settlement or provide de facto maintenance together with their family lawyers.
Indeed, going through cases like declarations about the existence of de facto relationships is stressful for couples. However, not all family law matters have to escalate to court. After all, not a lot of couples want to go through court proceedings and may want to opt for out-of-court resolutions. JB Solicitors can help guide couples through an amicable agreement through our mediation and arbitration services.
Message us for more information about the declarations about the existence of de facto relationships.
