Detailed checklist for the existence of a De Facto Relationship: The Factors a Court Considers


The definition of "de facto" in the Family Law Act includes same sex couples.

Whether you are in a De Facto Relationship is not always obvious but it can be important to determine whether you have any property settlement entitlements if your relationship breaks down.

First, you need to meet the basic "threshold" criteria the Family Law Act 1975 requires for the existence of a De Facto Relationship.

If you do not meet those requirements the Court cannot find you to be in a de facto relationship. Read the basic threshold criteria the Family Law Act 1975 requires here.

If the Court finds you meet the basic threshold criteria then to determine whether a couple is living together on a genuine domestic basis under the Family Law Act 1975, a Court usually considers:

  • The duration of the parties’ relationship
    • From when they first met
    • From when they started living together

  • The nature and extent of their common residence
    • If they had separate residences:
      • The extent to which they had belongings at each other’s residence
      • How frequently they spend nights at each other’s residence
      • Did either of them have mail for them sent to the other’s residence
      • Did either of them ever record the other’s address as their own on anything

  • Whether a sexual relationship exists and if so during what period

  • The degree of financial dependence or interdependence, and any arrangements for financial support, between them
    • What did they pay for which was for the other’s benefit
    • Any loans between them
    • Any personal guarantees
    • Any joint bank accounts, loans or other joint financial arrangements
    • How were joint activities paid for
    • How were joint consumables paid for
    • If property leased, was it joint

  • The ownership, use and acquisition of their property
    • Whose furniture is in the residence
    • Are things used mutually
    • Anything of one person’s used by the other regularly
    • Anything acquired jointly
    • Anything significant acquired solely by one person only
    • Any contributions to property owned by the other
    • Any non financial contributions to property owned by the other

  • The degree of mutual commitment to a shared life
    • Were they committed to a shared life together
    • Did they regard the other as committed to a shared life together
    • Did they have any long term plans
    • Did they have holidays together or separate
    • Were they affectionate together in front of others

  • Whether the relationship is or was registered in a State or Territory
    • Can be registered in Queensland, New South Wales, Victoria, ACT & Tasmania;
    • For same sex couples (apart from registration) can have civil unions in Australian Capital Territory, Tasmania, New South Wales and Victoria. 
    • Do Centrelink records regard them as a de facto couple or is the relationship registered with them

  • The care and support of children

  • The reputation and public aspects of the relationship
    • Were they affectionate together in front of others
    • Extent to which they attended social events together;
    • Did they have others stay with them overnight in their joint or separate residences
    • Extent to which they had met each other’s family
    • Extent to which they attended the other’s family events - Christmas, Birthdays, Anniversaries etc
    • This will be found in corroborative evidence  of others as to how they viewed them

  • Additional circumstances
    • Did they have a child together
    • Did they contributed to each other’s life domestically, sexually, financially and socially in circumstances which amount to a genuine domestic basis
    • Note simply because a relationship became stronger, does not mean that only then did it become a de facto relationship

The above list is not exhaustive but is a guide only. 

Each relationship will have its own circumstances.  Certain other factors must also exist.  You should also read the fact sheet “Requirements for a Court to say you are in a De Facto Relationship”.


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Content By:
Michelle Beatty, Senior Lawyer
Virtual Legal

Other Questions answered in the De Facto Relationships Section


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