If you and your partner are not married, you may be in a de facto relationship. A de facto relationship arises when two people, who are not legally married to one another, and who are not related, have a relationship as a couple living together in a marriage-like way.

De facto couples can include two people of opposite gender or two people of the same gender. In Australia, most long-term same-sex relationships will fall into the classification of a de facto relationship.

Either party to a de facto relationship can be married to other people.

A de facto relationship does not happen straight away if you commence living with your partner on a domestic basis. Generally, a de facto relationship will arise when one or more of the following things happen:

• You and your partner have lived together for 2 years; or
• You and your partner have a baby; or
• You and you partner make significant and/or ongoing financial and/or non-financial contributions to each other’s lives and property.

Unlike a marriage, it is not always easy to tell whether you are in a de facto relationship with someone and when it started. There may be no specific event that makes your relationship a de facto one and you do not have to sign any document for your relationship with your partner to qualify as a de facto relationship. Rather, the circumstances and marriage like nature of your relationship are what makes it legally a de facto relationship. If you and your partner separate, and there is a financial dispute, it will be very important to determine whether you were in a de facto relationship, as the law treats de facto couples the same as married couples where property is concerned.

If you were not a de facto couple, then any financial dispute will be determined differently.

If you have any doubt about whether you were in a de facto relationship, and you have a financial dispute with your former partner, you may need to see a lawyer to help you work out whether your relationship was a de facto relationship.

De Facto couples can register their relationships in some States of Australia. Presently, this is only available in Queensland, New South Wales, Victoria, Tasmania and the Australian Capital Territory. In 2007 the Federal Government announced that it would like to see a national register, where all de facto couples could register their relationships across Australia. This service has not yet been made available.

Sadly, many marriages and de facto relationships come to an end. It is not uncommon for two people in a long-term relationship to experience stresses in their relationship that they cannot overcome. There also may be extenuating circumstances which make staying in a marriage or a de facto relationship unreasonable.

Australia is a “no-fault” jurisdiction for relationship break downs. This means that the law does not look for, or recognise, any fault or blame in relationship breakdown. The law assumes that if you have separated your relationship has irretrievably broken down. It is the fact of separation – not the cause of separation – that matters from a legal point of view.

Therefore, if you and/or your partner no longer wish to remain in the relationship, you can separate. Separation generally occurs when one party believes the relationship to be over, when they communicate that fact to their partner and then commence living separately from the other party.

Separation normally occurs with one party leaving the former joint home. However, you can be separated while living under one roof. Living separately under one roof generally requires both parties living separate lives, separating their finances where they can and sharing the fact of separation with friends and family. You will need to prove these things to a court if you want to get a divorce or establish the date your de facto relationship has ended.

A 12 month period of separation is required if you want to divorce your partner. If you are in a de facto relationship you can terminate it immediately by separating.

If you are planning to leave your relationship, or have already done so, as a result of family violence, there are special support services that are available to make your transition a safe one. See our tab above about Family Violence.

Separation can be a difficult time for you and your family. Naturally, you, your partner (and your children if you have any) will be grieving for the end of the relationship as well as learning to adapt to this very significant change in your life. You can find support with your family and friends, as well as separation and divorce counselling within your community. Counselling services are offered both publicly and privately, as well as through your GP.

You, your former partner and your family can utilise the following public services as you transition through your separation:

• Relationships Australia provides low and no-cost specialist separation and family counselling for adults and children. Call 1300 364 277 or visit their website here.
• Anglicare WA also provides low and no-cost counselling for adults and children going through a family separation. You can contact Anglicare WA on (08) 9263 2050 or visit their website here.
• Centrecare provides support services and counselling to parents and families going through separation. You can contact Centrecare on (08) 9325 6644 or visit their website here.
• Family Relationships Online has a number of resources and counselling information available online. Visit their website here for more information.

Divorce

In order for a marriage to be terminated, you will need to be granted a divorce of your marriage. Without a divorce, you and your spouse will remain married and you will be unable to re-marry.

To divorce your partner, you will (generally) need to meet the following pre-requisites:

• One or both parties believe the relationship to be over, without the chance of a reconciliation;
• You and your partner have been separated for at least 12 months; and
• If there are any children of the marriage under the age of 18, proper arrangements must have been made for their care.

You can be separated from your partner while still living under the same roof, but you will need to provide substantial proof that you were separated so the court knows you are not trying to avoid the 12 month separation period.

If you have been married for less than 2 years you will need to attend counselling.

If you and your former partner have met these prerequisites, you can make an Application for a Divorce in the Family Court of Western Australia. One party can make the application or it can be a joint application.

For information and instructions on how to apply for a Divorce, see our tab above.

Once the Order is made, it will become final one month and one day later (for example, if the Order was made on 1 June 2016, the divorce will be made final on 2 July 2016). A copy of the Order will be made available to each party, for your records. Following that date, your marriage will be officially ended.

It is important to note that divorced couples will only have 12 months following the date of divorce to apply for a property settlement in the Family Court of Western Australia.

If you require any assistance in drafting your divorce application, or your rights and entitlements before and after divorce, you may want to consider getting legal advice. For instructions on completing your own divorce application, visit our Divorce Application tab above, or the Family Court of Western Australia website. If you are having trouble affording legal advice, see our Community Legal Services tab above.

Ending a De Facto Relationship

A de facto relationship ends when the couple separate. For more information about Separation, see our Relationship Breakdown and Separation tab above.

No documentation or registration is required to end your de facto relationship. If your de facto relationship was registered in another state, you may wish to consider removing your registration. Contact the respective Registry in order to find out what is required for you to remove that registration.

It is important to note that de facto couples will only have 24 months following the date of final separation to apply for a property settlement in the Family Court of Western Australia.

Upon separation, you will need to begin dividing your finances with your former partner, as well as arranging the care of your children.

Follow our brief checklist below to help with your transition into separation. This is not an exhaustive list, so make sure that you consider you and your family’s specific needs.

General

• Apply at Australia Post for a mail redirection.
• Change address for Drivers License and Electoral Role, as well as other personal services.
• Notify friends and family of your change in circumstance.
• Explore counselling and Family Dispute Resolution services as required.
• Get legal advice as required.
• Other: ______________________________________________________________.

Financial

• Open new bank account.
• Redirect income into new bank account.
• Arrange payments towards outstanding mortgages and liabilities.
• Rearrange insurances for your new circumstances, and superannuation nominees.
• Notify Centrelink and the Department of Human Services as required.
• Commence discussion with former partner about property division, either personally, via Family Dispute Resolution mediation or a legal representative.
• Document and list all assets and liabilities within your joint asset pool.
• Get financial advice as required.
• Other: ______________________________________________________________.

Children

• Notify schools, day-cares and medical services of your change in circumstances.
• Ensure appropriate facilities are available for the children at both parties’ houses.
• Commence discussion with your former partner about the children’s care arrangements, either personally, via Family Dispute Resolution mediation or a legal representative.
• Consider counselling and support services for the children as required.
• Other: ______________________________________________________________.

Working on Your Relationship