What is a de facto relationship in New South Wales? Marriage isn’t the only path to a legally recognised partnership. De facto relationships offer a unique blend of commitment and flexibility. But what exactly are they, and how do they shape lives?
Let’s look at this scenario: Sarah and Ben have shared a home, a dog, and a Netflix subscription for three years. Their friends joke about when they’ll finally get married, but they aren’t sure they need to. Are they in a de facto relationship? Let’s find out…
In Australia, a de facto relationship exists between two people who are not married or related by family but who live together as a couple on a genuine domestic basis. De facto relationships can be between partners of the same or opposite sex.
What Is a De Facto Relationship: The Family Law Act
The Family Law Act 1975 is the law that governs the legal matters concerning de facto relationships in Australia. Section 4AA of the Family Law Act 1975 is the primary section outlining the definition of a de facto relationship. It provides the factors courts consider when determining if a de facto relationship existed or exists:
- Duration of the relationship – Generally, a two-year period of cohabitation is the minimum, but there are exceptions under certain circumstances.
- Nature and extent of common residence – Whether the couple shared a home or predominantly lived together.
- Existence of a sexual relationship – While not always mandatory, a sexual relationship is a factor in establishing a couple’s status.
- Financial dependence or interdependence – How the couple manages their finances, including shared ownership of property, joint accounts, or contributions to household expenses.
- Ownership, use, and acquisition of property – Whether the couple acquired significant assets together.
- Degree of mutual commitment to a shared life – Demonstrating a shared life through social activities, public representation as a couple, etc.
- Care and support of children – If the couple has children together or if one partner cares for the other’s children.
- The reputation and public aspects of the relationship – How the couple was perceived by others – as a couple or simply as housemates.
Read: Declarations About the Existence of De Facto Relationships and Family Law Act De Facto Relationship
What Is a De Facto Relationship: Legal Rights
De facto couples in Australia have similar legal rights as legally married couples in several areas:
- Property Division. De facto couples can apply to the courts for a property settlement if their relationship breaks down. (It’s crucial to seek legal advice within two years of the separation.)
- Maintenance. A partner may be able to seek financial support (spousal maintenance) from the other in certain circumstances.
- Taxation and Superannuation. De facto couples may be treated similarly to married couples for some taxation purposes, and partners may be able to make superannuation contributions for each other or split superannuation balances on separation.
- Child Support. Laws relating to child support apply regardless of whether parents were in a de facto or married relationship.
- Immigration. A de facto partner can be included in certain visa applications.
Read: A Brief Guide About De Facto Rights NSW
How to Register a De Facto Relationship in NSW?
NSW recognises that modern relationships come in many forms. If you’re in a de facto relationship, registering offers an optional but potentially valuable way to formalise your commitment. As long as at least one of the two adults in the partnership resides in NSW, the NSW relationship registration serves as legal recognition.
You can register your relationship online with your partner if you want to. However, applications require fees. The total of which varies based on whether you want commemorative certificates and/or a relationship ceremony.
Eligibility Requirements
To register a de facto relationship in NSW, you must meet the following criteria:
- Residency – At least one partner must be a resident of NSW.
- Not Married or Related – You cannot be married to someone else, have another registered relationship, or be in a familial relationship (parent, child, sibling, etc.) with your partner.
- Over 18 – Both partners must be at least 18 years old.
- Genuine Relationship – Your relationship must be a genuine de facto relationship based on the usual factors like those outlined in the Family Law Act.
Documentary Requirements
Each partner must provide the following details and documents:
- a current email address
- personal and contact details.
- scanned documents to upload during your online application:
- 3 proof of identity documents
- a statutory declaration
- witnessed by an authorised witness
- details of the authorised witness.
Proof of Identity
You must submit one document from each of the three POI categories. You must submit at least one document from A2 and two documents from A3 if you are unable to supply a POI document from A1.
Area1
- Australian birth certificate
- Australian citizenship certificate
- New Zealand citizenship certificate
- New Zealand birth certificate
- ImmiCard
- Certificate of Registration by Descent
Area 2
- Australian driver licence
- Australian passport
- Australian firearms licence
- overseas passport containing a current visa
- proof of age card, or photocard issued by an Australian state or territory
Area 3
- Medicare card
- Private health care card
- Centrelink pensioner concession card, or other entitlement card
- Australian Department of Veterans’ Affairs card
- Security licence
- Student or tertiary education ID card
Additionally, the partner residing in NSW must provide his or her proof of address. This may already be included in your proof of identity, but, if not, you can also present any of these documents:
- an electricity, water, or gas bill issued within the last 3 months
- a lease agreement
- a council rates notice issued within the last 12 months.
Read: Application to Register a Relationship (NSW)
Proving a De Facto Relationship
To prove a de facto relationship, you’ll need evidence supporting the factors the family court looks at. This might include:
- Shared lease agreements or joint mortgage documents
- Joint bank accounts
- Bills addressed to both partners at the same address
- Photos together at social functions
- Statuary declarations from friends and family attesting to the nature of your relationship.
Feeling Unsure About Your De Facto Relationship Rights?
We understand. A compassionate NSW family lawyer from JB Solicitors can provide clarity and advocate for you. In NSW, de facto relationship laws can be complicated, particularly when it comes to financial and property distribution issues.
A family lawyer can assist you in fully comprehending your legal rights in relation to child support (if applicable), possible spousal maintenance, and property allocation. Our goal is to optimise your equitable result.
In the event that you need a court case, our family lawyers will fight for your rights with tenacious counsel. Contact us today for more information.
