In Australia, many people assume only married couples hold legal rights over property, finances and family matters. However, Australian law also protects unmarried couples in de facto relationships. If you live with a partner, plan to move in together, or separate after a long relationship, it is important to understand your legal position.
This article explains the rights of unmarried couples in Australia. It also outlines how the law recognises de facto relationships and what protections may apply to property, finances, children, superannuation and inheritance.
What Is a De Facto Relationship in Australia?
A de facto relationship is a relationship between two people who are not legally married to each other or related by family and who, having regard to all the circumstances, live together as a couple on a genuine domestic basis.
The Family Law Act 1975 (Cth) sets out the legal framework for determining whether a de facto relationship exists.
There is no single factor that automatically determines whether a couple is in a de facto relationship. The circumstances that may be considered include:
- the duration of the relationship;
- the nature and extent of the couple’s common residence;
- the degree of financial dependence or interdependence between the partners;
- the ownership, use and acquisition of property;
- the degree of mutual commitment to a shared life;
- whether the relationship is registered under a prescribed law;
- the care and support of children; and
- the reputation and public aspects of the relationship.
Each relationship is assessed according to its circumstances. Living together does not automatically mean that a couple is legally recognised as de facto, and a couple does not necessarily need to have lived together for two years before a de facto relationship can exist.
Do Unmarried Couples Have the Same Rights as Married Couples?
De facto couples can have many of the same legal rights and responsibilities as married couples, particularly in relation to property, financial support and parenting. However, the legal rules are not identical in every area.
| Legal issue | How it may apply to de facto couples |
|---|---|
| Property | Eligible de facto partners can apply for property orders under the family law system. |
| Financial support | A de facto partner may be able to seek de facto partner maintenance if the legal requirements are met. |
| Children | Parenting and child support laws apply to parents regardless of whether they were married. |
| Superannuation | A de facto partner may qualify as a dependant for superannuation death-benefit purposes, subject to the applicable rules. |
| Inheritance | Inheritance rights depend on the applicable succession law, including the state or territory in which the deceased was domiciled. |
Because the rules vary depending on the circumstances, it is important not to assume that being unmarried means having no legal rights or that de facto partners automatically have exactly the same rights in every situation.
Legal Rights of Unmarried Couples in Australia
Property Rights and Asset Division
Eligible de facto couples can apply for a property settlement after separation. These financial matters are dealt with under the family law system and can involve property, debts, financial resources and superannuation.
When determining a property dispute, the court considers the circumstances of the relationship and the parties’ financial and non-financial contributions, as well as relevant future-needs considerations.
Contributions may include:
- financial contributions such as income and property purchases;
- non-financial contributions such as homemaking and childcare; and
- contributions to the welfare of the family and the acquisition, conservation or improvement of property.
Future circumstances may also be relevant, including differences in income, age, health and caring responsibilities.
If you are considering separation or negotiating a property settlement, separation advice can help you understand your options before an agreement is reached.
A Binding Financial Agreement may also help couples establish how their property and financial resources will be dealt with if the relationship ends. Strict legal requirements apply to these agreements, so independent legal advice is important.
Is There a Two-Year Rule for De Facto Relationships?
The two-year period is important, but it is not an absolute rule that applies to every de facto relationship.
For certain financial proceedings following the breakdown of a de facto relationship, one of the relevant gateway criteria is generally that the relationship lasted for at least two years. Other gateway criteria can apply, including where:
- there is a child of the de facto relationship;
- the relationship is or was registered under a prescribed state or territory law; or
- significant contributions have been made by one party and refusing an order would result in serious injustice.
This means a person may have rights arising from a de facto relationship even where the relationship lasted less than two years.
Financial Support (De Facto Partner Maintenance)
A de facto partner may be able to apply for financial support after separation. This is sometimes referred to as de facto partner maintenance.
The court considers whether one partner is unable to adequately support themselves and whether the other partner has the capacity to provide financial support. Relevant circumstances can include factors such as age, health, income, financial resources and caring responsibilities.
Eligibility depends on the circumstances of the relationship and the requirements of the Family Law Act 1975 (Cth).
Superannuation and Inheritance Rights
Superannuation does not necessarily form part of a person’s estate in the same way as other assets. A de facto partner may, however, qualify as a dependant for superannuation death-benefit purposes.
Depending on the superannuation fund’s rules, a member may be able to make a binding or non-binding death-benefit nomination. The nomination can affect who receives the benefit, although the applicable superannuation rules and the fund’s trust deed should be considered.
The Australian Taxation Office provides guidance about superannuation death benefits.
Inheritance is a separate issue and is generally governed by the applicable succession laws of the relevant state or territory. If a person dies without a valid Will, the intestacy laws determine how their estate is distributed.
For couples in Victoria, a domestic or de facto partner may have rights under Victorian intestacy law. However, the outcome can depend on the circumstances, including whether there are children and the size and composition of the estate.
The safest way to make sure your partner receives the assets you intend them to receive is to have an up-to-date Will and review your broader estate planning when your circumstances change.
Parental Rights and Child Support
The fact that parents were not married does not prevent either parent from having rights and responsibilities in relation to their children.
Parenting matters are determined according to the children’s best interests and the applicable family law. The law does not simply give a parent greater rights because the parents were married.
Parenting arrangements may deal with matters such as:
- where children live;
- how much time children spend with each parent;
- how parents communicate and make decisions about children; and
- other practical arrangements for the care of children.
Child support is administered through Services Australia. Parents may apply for a child support assessment or use other arrangements available under the child support system.
More information is available from Services Australia about child support.
How to Protect Your Rights as an Unmarried Couple
Taking practical steps during a relationship can reduce uncertainty if circumstances change later.
Register Your Relationship in Victoria
Couples in Victoria can register a domestic relationship with Births, Deaths and Marriages Victoria. Registration can provide formal evidence of the relationship and may also be relevant to legal rights in certain circumstances.
You can find the current requirements for registration on the official Births, Deaths and Marriages Victoria website.
Create a Financial Agreement
A Binding Financial Agreement can set out how property and financial resources will be dealt with if the relationship ends.
Financial agreements can be useful for couples who want greater certainty about their financial arrangements. However, strict legal requirements apply, and each partner should obtain appropriate independent legal advice before entering into an agreement.
Keep Your Estate Planning Up to Date
Review your Will, superannuation nominations and powers of attorney regularly. This is particularly important after major life events such as moving in together, purchasing property, having children, separating or changing your financial circumstances.
Estate planning can help ensure your legal documents reflect your current relationship and intentions.
What Happens When a De Facto Relationship Ends?
When a de facto relationship ends, separating partners may need to resolve property, financial support and parenting issues.
Depending on the circumstances, this may involve:
- applying for a property settlement;
- seeking de facto partner maintenance if eligible;
- dealing with superannuation interests;
- making parenting arrangements for children; and
- arranging child support.
How Long Do You Have to Apply for a De Facto Property Settlement?
For most financial or property proceedings arising from the breakdown of a de facto relationship, an application must generally be made within two years of the breakdown of the relationship.
If more than two years have passed, the court’s permission may be required before proceedings can be commenced. This makes it important to obtain legal advice promptly if you are considering a property settlement after a de facto separation.
Do De Facto Couples Have to Go to Court?
No. Many family law disputes are resolved without a court hearing.
Depending on the circumstances, separating couples may negotiate directly, use lawyers to negotiate on their behalf, participate in mediation or formalise an agreement through appropriate legal documents.
The Federal Circuit and Family Court of Australia also provides a guide to dividing property and finances after separation.
What Should Unmarried Couples Do to Protect Their Interests?
If you are in a de facto relationship, consider reviewing your legal and financial arrangements before a dispute arises.
- Understand your relationship status. Consider whether your circumstances may meet the legal definition of a de facto relationship.
- Understand your property position. Keep appropriate records of property, debts, financial contributions and significant assets.
- Consider a Binding Financial Agreement. Obtain independent legal advice if you want to establish financial arrangements between partners.
- Review your Will. Make sure your estate planning reflects your current relationship and wishes.
- Review superannuation nominations. Check whether your beneficiary nominations remain appropriate.
- Consider powers of attorney. Make sure your arrangements for financial and personal decision-making reflect your current circumstances.
- Seek advice before separation if possible. Early advice can help you understand your options before making significant financial or parenting decisions.
Frequently Asked Questions About Unmarried Couple Rights in Australia
Do unmarried couples have property rights in Australia?
Yes. Eligible de facto partners can have rights in relation to property and financial matters following separation. The outcome depends on the circumstances of the relationship, the applicable legal requirements and the parties’ financial and non-financial contributions.
How long do you have to live together to be de facto in Australia?
There is no single rule that says a couple must live together for exactly two years before they can be considered de facto. Whether a de facto relationship exists is determined by considering the circumstances of the relationship as a whole. For certain financial proceedings, however, a relationship lasting at least two years is one of the relevant gateway criteria.
Can a de facto partner claim property after separation?
An eligible de facto partner may be able to apply for property orders after separation. Time limits and other eligibility requirements apply, so obtaining legal advice promptly is important.
Can a de facto partner claim spousal maintenance?
A de facto partner may be able to seek de facto partner maintenance if the relevant legal requirements are satisfied. The court considers whether the applicant is unable to adequately support themselves and whether the other partner is reasonably able to provide support.
Does a de facto partner automatically inherit?
Inheritance rights depend on the applicable succession law and the circumstances of the estate. In Victoria, domestic partners can have rights under intestacy laws, but the outcome can vary depending on factors such as whether the deceased had children and the value of the estate. Having an up-to-date Will provides greater certainty about your wishes.
Does my de facto partner automatically receive my superannuation?
Not necessarily. A de facto partner may qualify as a dependant for superannuation death-benefit purposes, but the outcome can depend on the fund’s rules, beneficiary nominations and the circumstances at the time of death.
Does being unmarried affect parental rights?
Parents do not lose their rights or responsibilities simply because they were not married. Parenting matters are determined under family law with the best interests of the child as the paramount consideration.
Get Legal Advice About Your Rights as an Unmarried Couple
De facto couples can have many of the same legal protections as married couples, but the rules vary depending on the issue and the circumstances of the relationship.
Property, financial support, parenting, superannuation and inheritance can each involve different legal requirements. Understanding your position early can help protect your financial and personal interests.
If you are entering, living in or leaving a de facto relationship, Irvine Lawyers can provide family law advice about your rights and options.
Need legal advice? Book a consultation with Irvine Lawyers today.