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De Facto Not Living Together: Can You Still Be Considered a Couple in Australia?

de facto not living together"| Justice Family Lawyers

A de facto relationship in Australia refers to a couple living together on a “genuine domestic basis” without being married. However, sharing the same home isn’t the only way to qualify as de facto. Many couples live separately due to work, personal preferences, or family commitments, and can still be recognised as de facto partners. 

Below, we’ll explore how Australian family law determines if you’re in a de facto relationship even when you and your partner don’t live together.

Can We Still Be Considered in a De Facto Relationship if We Don’t Live Together?

Yes, you can still be considered in a de facto relationship in Australia, even if you and your partner don’t live together. The law doesn’t solely rely on whether you share the same home to determine if a relationship qualifies as de facto. Instead, Australian family law looks at various aspects of the relationship to decide whether it meets the criteria.

Under the Family Law Act 1975, a de facto relationship exists when two people, regardless of their gender, live together as a couple on a “genuine domestic basis.” While cohabitation is one of the factors the court looks at, it’s not the only one. This means that couples who live separately for various reasons — like work commitments, personal preferences, or family obligations — can still be considered in a de facto relationship.

The key is whether the couple is seen as living together as a couple on a domestic basis, even if they don’t share the same roof. Other factors, such as financial arrangements, the length of the relationship, and whether they present themselves as a couple to the public, will also be taken into account.

Read Also: Does De Facto Count as Spouse?

What Factors Are Considered if We Don’t Share a Home?

If you and your partner are not living together, several factors will be considered to determine whether you are in a de facto relationship. The court looks at the overall nature of your relationship, and the fact that you don’t share a home won’t automatically disqualify your relationship from being recognised legally. Some of the key factors include:

1. The Length of the Relationship: The longer you’ve been together, the more likely the court will view your relationship as de facto. There is no strict timeframe, but generally, if the relationship has lasted for at least two years, it’s more likely to be considered de facto, even without cohabitation.

2. The Nature and Extent of Your Common Residence: Although living together is a key factor, the court recognises that it’s not always possible for couples to live under the same roof. If you don’t live together, the court will assess how much time you spend in each other’s homes and how often you stay overnight at each other’s residences.

3. The Degree of Financial Dependence or Independence: Financial arrangements play a significant role. If you and your partner share bank accounts, contribute to each other’s expenses, or rely on each other financially, this indicates a de facto relationship, even if you don’t live together.

4. The Nature of Your Commitment to Each Other: The court will also look at whether you are committed to a shared life together. This includes long-term plans, joint decisions, and the way you present yourselves as a couple to others. If you attend family functions together, introduce each other as partners, or share important life decisions, it suggests a committed relationship.

5. Public Reputation of the Relationship: How you and your partner are perceived by friends, family, and the community can also impact whether your relationship is considered de facto. If you are known publicly as a couple, even without cohabitation, this strengthens your case.

6. Sexual Relationship: Whether or not the relationship is intimate can also be considered, though it’s not a determining factor on its own. The nature of the emotional and physical bond between you plays a part in how your relationship is viewed.

It’s important to note that no single factor is enough to establish a de facto relationship. The court will look at the overall picture of your relationship when making a decision.

What Should We Know About Rights and Responsibilities in a De Facto Relationship?

Whether you live together or not, de facto couples in Australia have similar rights and responsibilities as married couples. These rights and obligations include property division, spousal maintenance, and parenting arrangements if you have children together.

1. Property Rights: If your relationship is deemed de facto, both partners have the right to seek a fair division of property and assets. This includes shared homes, bank accounts, and other joint assets. The court will consider each partner’s financial and non-financial contributions to the relationship when making property settlement decisions.

2. Spousal Maintenance: If one partner is unable to support themselves financially after the breakdown of the relationship, they may be entitled to spousal maintenance. This is a payment made by one partner to help the other meet their living expenses. The court will consider factors like each partner’s income, financial needs, and ability to pay when deciding on spousal maintenance.

3. Children and Parenting Arrangements: If you have children together, your rights and responsibilities towards them remain the same, whether you live together or not. Parenting arrangements, including custody and visitation rights, are based on the best interests of the child. Both partners are responsible for the financial and emotional well-being of the children, regardless of the couple’s living situation.

4. Superannuation: De facto couples also have the right to seek a division of superannuation. Superannuation can be treated as part of the property settlement, and the court can order that it be split between the partners.

Read Also: Cohabitation to Court: De Facto Rights

Unsure Whether Your Relationship Qualifies as de Facto?

In Australia, a de facto relationship can still exist even if you don’t live together. What’s important is the nature of the relationship, not just the living arrangements. The court will assess your financial ties, emotional commitment, and how you present yourselves to the world to determine whether you qualify as a de facto couple.If you’re unsure whether your relationship qualifies as de facto or if you need advice on property settlements or legal rights, Justice Family Lawyers can provide expert guidance. Contact us today to discuss your situation and get the support you need to protect your rights.

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