Ask a family lawyer: Am I in a de facto relationship and what does that mean if we break up?

What if you’re non-monogamous? Who gets custody of the pets? All your burning questions answered.

Beyond living with my partner, I haven’t given much thought to the idea of formalising our relationship. Sure, there are the expected milestones, like getting married, buying a house and maybe even having kids. But if you’re not quite there, or if you don’t aspire to those things, living with someone (and putting them down as your emergency contact) can feel as official as it gets.

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In legal terms, it’s called a ‘de facto relationship’. More than dating, but not quite marriage, you’ve probably heard the term in passing without giving it too much thought. But de facto relationships are becoming more and more common, with fewer young women getting married and more entering into de facto relationships.

According to the latest Household, Income and Labour Dynamics in Australia (HILDA) survey, only 21 per cent of women aged 25 to 29 were married in 2021, compared to 36 per cent in 2001. 36 per cent were considered to be in a de facto relationship.

It made me wonder – am I in a de facto relationship, and am I doing something wrong by not declaring it? To help break things down, I spoke to Nicole Evans, a family lawyer and Managing Director of Barker Evans.

What is a de facto relationship and how do you know if you’re in one?

“To be considered to be in a de facto relationship under family law, you don’t need to register your relationship,” Nicole tells me. “A person is in a de facto relationship with another person if, regardless of sex or gender, they are not married, not related by family and they have a relationship as a couple living together on a genuine domestic basis,” she says. 

According to Nicole, you need to have lived with your partner for at least two years, though this isn’t a hard and fast rule. It can also depend on things like whether you have a child together or whether you’ve lived together on and off.

Can you be in a de facto relationship if you’re non-monogamous?

“Yes, in family law they will consider the details and intricacies of your relationship,” Nicole says. She explains that this might include factors like the nature of your relationship, how long you’ve lived together, public representations of your relationship, the level of financial interdependence and whether there are any children involved.

“A de facto relationship can even exist in circumstances where both or one of the parties are legally married or in a de facto relationship with someone else provided you meet the rest of the criteria.”

If you break up, who gets to keep what?

Usually, you don’t realise just how many things you’ve accumulated over the years until you either move houses or break up with somebody. However, if you’re in a de facto relationship and it ends, Nicole explains that it’s usually up to you and your partner to decide how you want to divide things up. 

If you can’t come to an agreement on who gets to keep the expensive coffee machine or the TV, then you’ll need to start considering things like who contributed what, how long you were together and what you each might need in the future (and this includes pets).

If one person owned property before entering into a de facto relationship, then it can get a little more complicated. According to Nicole, even though a person might not be on the title or deed, the property can still be included in the asset pool (though if this is the case, it’s best to seek legal advice).

What steps should someone take if they want to separate from their de facto partner?

“Separation is usually considered to occur when one party of the relationship moves out from the shared residence or tells the other person that the relationship is over,” Nicole says. You can also be separated while still living under the same roof, just make sure you’ve clearly communicated to your (former) significant other that the relationship is in fact over.

How do you protect yourself in a de facto relationship?

“Each de facto relationship will have its own unique circumstances, [so] it’s difficult to tell someone how to ‘safeguard’ your relationship,” Nicole says.

Registering your de facto relationship shows you want to be recognised as a couple, though it’s not required. Nicole also says there are formal arrangements like a Binding Financial Agreement or prenup, but it’s always recommended to chat with a lawyer to see how it can affect your rights.

For more on marriage and relationships, try this.