De facto and same-sex relationships

What makes a relationship de facto

Section 4AA of the Family Law Act defines a de facto relationship as two people who are not married to each other and not related by family, who have a relationship as a couple living together on a genuine domestic basis. Gender is irrelevant. So is whether either of you called it a de facto relationship at the time.

The court weighs a list of circumstances, none of them decisive on its own:

• How long the relationship lasted.
• Whether you lived together, and how much of the time.
• Whether there was a sexual relationship.
• How finances were arranged, including any financial dependence or support.
• Whether you jointly owned or acquired property.
• Whether there was a mutual commitment to a shared life.
• Care and support of children.
• How the relationship was presented publicly.
• Whether the relationship was registered under a state or territory law.

People can be in a de facto relationship while keeping separate homes, and can share a house for years without being in one. Two nights a week for a decade with separate finances is a genuinely arguable case in both directions.

The gateway in section 90SB

Before a court can make a property or maintenance order for a de facto couple, at least one of four things must be established under section 90SB:

1. The relationship, or the total of separate periods of it, lasted at least two years.
2. There is a child of the de facto relationship.
3. The applicant made substantial contributions of the kind described in section 90SM(4), and a failure to make the order would result in serious injustice to them.
4. The relationship is or was registered under a prescribed state or territory law. Queensland allows registration of civil partnerships under the Civil Partnerships Act 2011 (Qld).

The third limb is the escape valve for short relationships where one person poured money or labour into the other's asset. It is not a low bar. "Substantial" and "serious injustice" both do real work.

The relationship must also have a geographical connection with a participating state or territory, which is rarely an issue for Queensland couples but matters where the relationship was largely conducted overseas.

The two-year deadline, and why it bites harder

Section 44(5) gives a de facto partner two years from the end of the relationship to apply for a property settlement or maintenance. Outside that, you need the leave of the court under section 44(6), granted only where hardship would result.

This deadline is worse than the married one for a structural reason. A married couple's 12 months does not start until a divorce order takes effect, and a divorce is a formal event with paperwork and a date. A de facto relationship ends when it ends, often ambiguously, sometimes over months, and nothing arrives in the post to remind you.

Two consequences follow. First, if there is any argument about the date of separation, treat the earliest arguable date as the real one and work back from there. Second, if you are approaching the deadline and negotiations are not finished, filing an application to preserve your position is usually cheaper than arguing for leave later.

Proving the relationship existed

Where one party denies the relationship, or denies it lasted two years, the case is decided on ordinary documentary evidence.

• Leases, mortgage documents and utility accounts showing a shared address.
• Joint bank accounts, shared insurance policies and superannuation nominations.
• Centrelink and tax records where you declared a partner.
• Travel bookings, photographs, invitations and messages.
• Statements from friends, family, neighbours and employers.
• Wills, powers of attorney and next of kin details on medical records.

The reverse is also true. If you are in a relationship and want certainty about what happens if it ends, a binding financial agreement under Part VIIIAB can be made before, during or after a de facto relationship. It is far cheaper than the litigation it avoids.

Parenting matters do not depend on any of this. A child's arrangements are decided under the same best interests test regardless of whether the parents were married, de facto, or never lived together. See parenting and custody.