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Marriages, civil unions and de facto relationships

De facto relationships

Care of Children Act 2004, s 47

For most areas of the law, de facto partners now have the same status as people who are married or in a civil union. For example, when a de facto couple splits up, the laws that deal with how their property is divided are largely the same as the laws for married and civil union couples (see “Relationship property” in this chapter). Similarly, the Care of Children Act 2004 generally treats de facto partners the same as married couples – for example, the de facto partner of a child’s parent is entitled to apply for a parenting order for the child, just as the married spouse of a parent can apply for one. However, the exact definition of a de facto relationship can vary from Act to Act, as explained below.

What is a “de facto relationship”?

A de facto relationship is a relationship between two people, whether of the same sex or the different sexes, who live together as a couple but who aren’t married or in a civil union. For the relationship to be legally recognised, however, both people must be of a certain age, and this age can vary depending on the particular area of law.

Interpretation Act 1999, s 29A

For example, there’s a general definition of a de facto relationship in the Interpretation Act, which includes a requirement that both people must be at least 16, and that 16 and 17-year-olds need permission from a Family Court judge to be in the relationship. This definition applies to areas of law like the Care of Children Act, which doesn’t have its own definition of de facto relationship.

Property (Relationships) Act 1976, s 2D

On the other hand, the Property (Relationships) Act, which deals with how property is divided when a couple break up, does have its own definition of de facto relationship. This says both partners must be at least 18 for the relationship to be recognised under that Act. So when it comes to dividing property, it’s this minimum age of 18 that applies.

The Property (Relationships) Act also sets out a number of specific factors for the Court to consider when it’s deciding whether two people have in fact been living together in a de facto relationship – such as whether they live in the same house, whether they have a sexual relationship, and how the relationship appears to other people. (See “Relationship property: Dividing your property when you split up / Who’s covered by the Property (Relationships) Act” in this chapter.)

How do de facto relationships begin and end?

De facto relationships are unlike marriages and civil unions because no formal legal steps are necessary to begin or end a de facto relationship. The two partners simply start, or stop, living together as a couple.

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