The Six Month Myth – De Facto Relationships in Australia

When lockdown was recently lifted, at a small gathering between friends, I was asked: “Is it true that after 6 months of being together, my partner can take half of my assets?” The answer to that question can be broken down in two parts;

1. 6 Months of Being Together

It is a common misconception that after 6 months of being with your partner that you are counted as being in a de facto relationship. The Family Law Act provides that for the court to deem that you have been in a de facto relationship after you have separated, you must meet one of the following criteria.

• That the period for the de facto relationship is at least 2 years
• That there is a child in the de facto relationship
• That the relationship is or was registered under a prescribed law of a State or Territory
• When assessing property or custodial claims in cases of a breakdown of a relationship, it is recognised that significant contributions were being made by one party and the failure to issue an order would result in a serious injustice

Therefore, if you have only been together for 6 months and you have not had a child together or there has been no major contribution (ie only one party has bought a house), then your boyfriend or girlfriend of 6 months would not be your de facto and it would need to be at least 2 years of being in a de facto relationship before it can be considered.

Are we or aren’t we; what makes us a de facto relationship?

Now after two years, you may be in a de facto relationship but it depends on whether you are together on genuine domestic basis. In determining this, the court will look at the following factors:-

• the duration of the relationship;
• the nature and extent of common residence (do you live together full time or part time?)
whether a sexual relationship exists;
• the degree of financial dependence or interdependence and arrangements for financial support; (do you have a shared bank account or separate)
• the ownership, use and acquisition of their property;
• the decree of mutual commitment to a shared life;(you are in monogamous relationship)
• whether the relationship is or was registered under a prescribed law of a State/Territory;
• the care and support of children; and
• the reputation and public aspects of the relationship (do you go to parties together)

So even if it has been two years, you still may not be in a de facto relationship if some of these factors have not been met. But the court will give weight more to certain factors than others (for example; if you have been living together)    

2. My partner can take half of my assets

Now let’s just say that you have been living together for six months and there is a baby on the way, and you brought the house into the relationship, the court may decide that it is a de-facto relationship that you are in. However, it would still be very unlikely that your partner would get half as it is a relatively short relationship but they may still get a small percentage. How can we help? If you would like some assistance in determining if you are in a de facto relationship or not we have developed a questionnaire that you can access here. If you are in a de facto relationship you may want to have a binding financial agreement prepared. You can read more about binding financial agreements here.

At Phillips & Wilkins, Chris practices in the areas of Property Law, Conveyancing and Family Law. Chris has grown up in the Northern Suburbs and continues to be a part of the local community as being a member of the Old Paradians Amateur Football Club and the Mill Park Cricket Club. Learn more about Chris' legal experience.