Are you in a de facto relationship and what does it matter? De facto relationships are a bit trickier than other relationships such as marriage or civil union as they often evolve as opposed to having a particular starting date.

Why this matters is that under the Property (Relationships) Act 1976 (PRA) when a qualifying relationship (of three years or more) ends through separation or death then all relationship property is subject to equal sharing rules. A qualifying relationship includes marriage, civil unions, and de facto relationships.

The PRA outlines factors that a Court would use to determine whether a couple is in a de facto relationship. These factors are:

• the duration of the relationship

• the nature and extent of common residence

• whether or not a sexual relationship exists

• the degree of financial dependence or interdependence, and any arrangement of financial support between the parties

• the ownership, use, and acquisition of property,

• the degree of mutual commitment to a shared life

• the care and support of children

• the performance of household duties

• the reputation and public aspects of the relationship

Any combination of the above could be regarded as a de facto relationship, i.e. it is not essential that a couple be living together, if there are enough other factors to convince a Court.

While relationships of three years or more usually result in equal sharing of relationship property, shorter duration relationships can also be subject to relationship property division. In a de facto relationship if there is a child of the relationship, or one of the partners has made a substantial contribution to the relationship, then relationship property will be divided in accordance of the contribution of each partner.

Society has changed a lot since the enactment of the PRA, and it is common for people to re-partner and bring in significant assets to a relationship. Protecting those assets from an equal sharing relationship property division can be done through a ‘Contracting Out Agreement’ more commonly known as a pre-nup. In a contracting out agreement, the couple decides to ‘contract out’ of the PRA and make decisions about what property will be considered relationship property and what will remain separate property. This can save a lot of heartache in the future if the relationship comes to end through separation or death.

‍