There is a common misconception that married couples automatically enjoy stronger legal rights than de facto couples. In reality, Australian family law has evolved significantly, and many of the protections available to married couples now extend to those in de facto relationships as well.
Understanding where the law treats these relationships equally — and where key differences remain — is essential for anyone navigating separation, property division, or parenting arrangements. Whether you are entering a long-term relationship, currently separated, or planning ahead, seeking guidance from a qualified de facto family lawyer can help ensure your rights are clearly understood and protected.
What Counts as a De Facto Relationship?
Under Australian law, a de facto relationship exists when two people are not legally married but live together on a genuine domestic basis. This applies to both heterosexual and same-sex couples. Courts assess several factors to determine whether a relationship qualifies as de facto, including:
- The length of the relationship
- Whether the couple lived together
- Financial interdependence
- Ownership and use of property
- The presence of children
- The public nature of the relationship
Importantly, there is no requirement for a formal registration of the relationship, although some states allow couples to do so.
Legal Recognition: De Facto vs Married Couples
Since 1 March 2009, de facto couples who separate can have their property and financial disputes heard in the Family Court or Federal Circuit and Family Court of Australia — the same courts that deal with matters for married couples. In many respects, this reform placed de facto couples on almost equal footing with married couples, particularly in relation to:
- Property settlements
- Spousal maintenance
- Parenting arrangements
However, the pathways to establishing entitlement can differ.
Property Settlement Rights
Both married and de facto couples are entitled to seek a property settlement following separation. The court uses the same four-step process in both cases:
- Identifying the asset pool
- Assessing financial and non-financial contributions
- Considering future needs
- Ensuring the outcome is just and equitable
The key difference is timing. Married couples have 12 months from the date of divorce to commence property proceedings. De facto couples have two years from the date of separation. Missing these deadlines can significantly complicate matters.
Spousal Maintenance
Spousal maintenance — financial support paid by one partner to another — is available to both married and de facto couples. Eligibility depends on whether one party is unable to adequately support themselves and whether the other party has the capacity to pay. There is no automatic entitlement. Each case is assessed on its own merits, taking into account income, health, earning capacity, and caring responsibilities.
Parenting Matters and Children
When it comes to children, the law makes no distinction at all between married and de facto parents. Parenting arrangements are determined based on the best interests of the child, regardless of the parents’ marital status. This includes decisions about:
- Living arrangements
- Time spent with each parent
- Education
- Health and welfare
The court’s primary focus is the child’s wellbeing, not the nature of the parents’ relationship.
Financial Agreements: Married vs De Facto
Both married and de facto couples can enter into binding financial agreements, often referred to as “prenups” or “postnups.” These agreements allow couples to determine in advance how property and financial resources will be divided if the relationship ends. For de facto couples, financial agreements can be particularly valuable, as they provide clarity and reduce the risk of disputes where assets or contributions are unequal.
Here are the Key Differences to Be Aware Of
While many rights are similar, some differences remain:
- Proof of relationship: De facto couples may need to prove the existence of their relationship before accessing legal remedies.
- Eligibility thresholds: Generally, de facto couples must have lived together for at least two years, unless they have a child together, registered the relationship, or one party made significant contributions.
- Divorce: Married couples must formally divorce; de facto couples do not require any legal dissolution of the relationship.
Why Legal Advice Matters
Despite the broad similarities in legal treatment, de facto relationship matters can be more complex due to evidentiary requirements and strict time limits. Obtaining tailored legal advice early can prevent costly mistakes and ensure your entitlements are protected. Understanding your rights — whether married or de facto — empowers you to make informed decisions during what is often a challenging and emotional time.
The takeaway here is that Australian law recognises that committed relationships exist in many forms… not just marriage
While de facto couples now enjoy many of the same legal protections as married couples, the differences that remain can have serious legal and financial consequences if overlooked. If you are unsure where you stand, seeking professional guidance sooner rather than later can provide clarity, confidence, and peace of mind.