There are many misconceptions about when two people will be considered to be in a defacto relationship. A common belief is that two people will be considered defacto after they have been living together as a couple for two years.

Whilst this definition is not necessarily wrong, it is not the only criteria used to determine whether two people are in a defacto relationship.

Under the Family Law Act, a person will be considered to be in a defacto relationship if they are not legally married to each other, the persons are not related by family and having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Unfortunately, this definition does not give a straightforward or clear answer about what exactly is a defacto relationship.

The legislation does however provide a list of factors which will go towards determining whether two people were in a defacto relationship. These include:

  • the duration of the relationship;
  • the nature and extent of their common residence;
  • whether a sexual relationship existed;
  • the degree of financial dependence or financial support between the parties;
  • the ownership, use and acquisition of their property.
  • the degree of mutual commitment towards a shared life;
  • the care and support of children; and
  • the reputation and public aspects of the relationship.

Why is it important to know if I am defacto or not?

The Federal Circuit and Family Court of Australia deals with issues relating to separation of married and defacto couples including issues relating to the division of a couples’ property.

The Court only has jurisdiction to deal with the couple’s property if those two people are married or otherwise in a defacto relationship. If the Court finds that you are not in a defacto relationship, you or your ex-partner will not be able to make a claim on the other’s property.

How do I protect my assets from my partner?

One option to protect your assets from a new partner, is to enter into a binding financial agreement. A binding financial agreement can be entered into at any time during or after the breakdown of a relationship. A binding financial agreement made during the relationship will set out how your property will be divided upon a separation.

Some other practical ways to ensure to include:

  • keeping your finances separate
  • avoiding purchasing property together
  • avoid allowing your partner to contribute financially or non-financially to your property (other than paying a money equivalent to rent or board)

Even if you achieve all of the above, the Court may still find that your ex-partner has a claim to your property.

If you would like to find out more information, or to book a consult, please call us on 4322 0251 or email [email protected]