In 2008, the Australian Government introduced reforms to ensure that same-sex de facto couples are entitled to the same benefits and subject to the same obligations as opposite-sex couples. Many of these changes will apply to couples who are ‘de facto partners’.
There are a number of issues to consider when working out whether you are a ‘de facto partner’ under Commonwealth laws.
Issue 1. What is the status of your relationship? Essentially a ‘de facto relationship’ refers to two people (regardless of gender) who live together as a committed couple
The law says you are in a de facto relationship with another person if you:
- are not legally married to each other; and
- are not related by family; and
- have a relationship as a couple living together on a genuine domestic basis.
You can still be in a de facto relationship with another person even if one of the partners is:
- legally married to someone else; or
- in another de facto relationship; or
- in a registered relationship (this refers to the Tasmanian, Victorian or Australian Capital Territory relationship registry schemes).
You can be in a de facto relationship even if you are in an open relationship as long as you are a committed couple.
Issue 2. Are you ‘living together’?
To be in a de facto relationship you will need to be living together on a genuine domestic basis. Generally, ‘living together’ means you share a home. However, some cases have found that regularly staying over each at other’s homes in a longer-term arrangement can be classified as ‘living together’ too.
You can also be considered to be ‘living together’ if you are:
- temporarily living apart from each other (eg, because of work); or
- no longer living together due to illness or infirmity (eg, one partner living in a nursing home).
Issue 3. Are you living together ‘as a couple’?
To be in a de facto relationship, you must be living together as a couple. This means that friends or flatmates who live together are not considered de factos.
To determine whether you are living together ‘as a couple’, all the circumstances of your relationship will be taken into account, including any or all of the following circumstances:
- the length of the relationship;
- whether you live together;
- whether a sexual relationship exists;
- the degree of financial dependence or interdependence;
- the ownership, use and acquisition of property;
- the degree of mutual commitment to a shared life;
- the care and support of children; and
- whether your friends and family consider you to be a couple.
It is not necessary for any one of these factors to be found in order to determine whether two people have a relationship as a couple.
Issue 4. Are there other legal requirements?
There is generally no minimum length of relationship requirement in order to be recognised as a de facto partner.
However, some Commonwealth laws list other factors that must be satisfied to be recognised a de facto couple. For example, in order to access the family courts upon relationship breakdown, you may need to be in a de facto relationship for 2 years (for more information see our fact sheet: Relationship breakdown). In most cases however, there are discretions to waive minimum length of relationship requirements. You will need to check whether other legal requirements apply to you.
Issue 5. Interstate or overseas marriages, civil unions or registrations.
You do not need to register your relationship to be recognised as a de facto couple. However, if you have registered your relationship in Tasmania, Victoria or the Australian Capital Territory you can generally use your certificate as proof. In Commonwealth law, this means you will automatically be recognised as ‘de facto partners’. You can also use an overseas same-sex marriage certificate or civil union to prove a de facto relationship, but these are not automatically recognised in Australia.
Where can I get more information?
Working out how the law applies to your relationship can be difficult.
The Inner City Legal Centre has a state-wide, specialist lesbian and gay legal advice service. Please call (02) 9332 1966.
If you are dealing with a government agency they may be also able to assist.