“We Were on a Break!” – What Really Defines a De Facto Relationship in Australia
Family Law: 03 November 2025
Author: Abbey Hoolahan - Our People
In some family law cases, especially where the parties are not married, disputes can arise as to whether a de facto relationship existed.
What is a De Facto Relationship?
Under section 4AA (1) of the Act, two persons of any sex, are deemed to be in a de facto relationship if they are:
1. Not legally married to each other;
2. Not related by family; and
3. Having regard to all circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Prerequisite in making financial claim
Prior to someone being able to make a claim for a financial order against their former partner under the Family Law Act 1975 (Cth) (“the Act”), the party alleging the claim must firstly prove the relationship existed at what is called a “threshold hearing.”
As Judge Turnball states in the case of Khoi & Khoi (No 2) [2024] FedCFamC2F 61 [at 2](“Khoi”):
“If the Applicant cannot show, on the balance of probabilities, that he [or she] and the Respondent were, at any time, de facto partners, then his application for a final order under pt VIIIAB of the Family Law Act cannot continue.”
Threshold hearing
This process allows the Court to filter and streamline matters that do not necessarily have an issue in relation to whether there is a de facto relationship, compared to those where this dispute is very much alive.
After considering the evidence put forward, the Court may make a declaration as to whether the de facto relationship existed or never existed between the parties.
Circumstances the Court may consider
When assessing whether the parties were in a de facto relationship some of the “circumstances”, the Court may consider, include any or all of the following:
(a) whether the relationship is registered;
(b) if the parties are married;
(c) the total period of the relationship;
(d) whether finances have been intermingled;
(e) financial contributions made by the parties;
(f) whether a sexual relationship exists;
(g) the degree of financial dependence or interdependence and arrangements for financial support between them;
(h) the degree of mutual commitment to a shared life;
(i) the reputation and public aspects of the relationship; and
(j) the care and support of children.
One factor is not determinative
When considering the above factors, the Court does not review one circumstance in isolation, nor does it promote that a finding in one case should necessarily be taken to be binding on another.
This is relayed in sections 4AA(3) and (4) of the Act, whereby it states, when considering the section 4AA(2) circumstances:
• “No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship; and
• A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.”
Some of these circumstances are expanded in more detail below:
“We were on a break!”
Under section 4AA(2)(a) of the Act, an important aspect of assessing whether two people are in a de facto relationship is the duration of the relationship and whether this constitutes a period of at least two years.
Take this case study for example:
Ross and Rachel have been in a relationship from 1 April 2022 to 1 May 2024, totaling a period of 2 years and 1 month.
During this period, they experienced four temporary “break ups” lasting three weeks each, occurring in: 5 October 2022 to 26 October 2022, 3 June 2023 to 24 June 2023, 20 December 2023 to 13 January 2024 and 3 July 2024 to 24 July 2024.
Overall, when we exclude the “break up” periods from the duration of their relationship, Ross and Rachel have been together for a period of just under two years.
Living under separate roofs
A common misunderstanding is that just because two people do not live together, this does not necessarily mean that they are not in a de facto relationship.
Under section 4AA(2)(b) and (c) of the Act the Court will also consider the nature and extent of their common residence as well as whether a sexual relationship exists.
This means that even in cases where the parties do not reside together, there is still a possibility that a de facto relationship having existed.
Financial intermingling
Under section 4AA(2)(d) and (e) of the Act the Court considers the degree of financial dependence or interdependence, and any arrangement for financial support between the parties, including the ownership, use and acquisition of property.
Merging of finances for example can include things like having joint bank accounts, acquiring property or assets together in joint names, splitting utilities and bills, and so forth.
Other circumstances
Some other circumstances the Court may consider as evidence relate to things like declarations on your government forms, such as Centrelink and Will documentation. For example, in Khoi, the Respondent referred to the Applicant in his Will as his “very good friend”, whereas in the case of Martens & Bocca [2016] Fam CA 1044, the respondent appointed the applicant as his “partner”.
Limitation period
If it is found that a de facto relationship existed, it is important to establish when the relationship broke down.
This is a key element to consider, as the Court imposes a limitation period of two years from the breakdown of your relationship for persons to apply for de facto financial orders.
After this time, if no financial agreement has been on foot previously, you need the Court’s permission, or the consent or your former partner to apply.
Whether you are seeking advice about your own de facto relationship, or property and financial settlement, it is crucial to get legal guidance tailored to your own experience and circumstances. We encourage you to reach out to our experienced family lawyers to help you understand your rights.
If you would like any assistance with the above, please call our office on 03 8600 6000 and speak with one of our highly qualified and experienced family lawyers.