This information is general and not a substitute for legal advice. The Legal Services
Commission provides free advice for most legal problems.
Contact the Legal Helpline 1300 366 424
(TTY 8463 3691) www.lsc.sa.gov.au www.lawhandbook.sa.gov.au
WHAT IS A DE FACTO RELATIONSHIP?
A de facto relationship is one where a man and woman live together like a married couple. It is not enough to live in
the same house, or even to sleep in the same bed. To have a de facto relationship you must both intend to live
together in the same way as a husband and wife would. The law recognises de facto relationships in a variety of
situations. There is no set time that you must live with someone before you are recognised as a de facto partner. It
depends on the purpose for seeking to establish a de facto relationship. There are different criteria defining de
facto relationships, depending on the relevant legislation. For example, if one person dies, the surviving partner
may not be entitled to certain rights unless they qualify as a putative spouse. To become a putative spouse you
must have lived together for five out of the last six years or have a child together. In most areas, the law only
recognises heterosexual relationships. Same sex couples should seek legal advice about their particular situation.
IS A DE FACTO RELATIONSHIP THE SAME AS A MARRIAGE?
In some areas of law, a de facto relationship is treated as a marriage, and in other areas it isn’t.
It doesn’t matter whether your relationship is a de facto or a legal marriage for:
● Legal Aid
● pensions and benefits
● getting a restraining order against a violent partner
● court orders for care of children
● child support
● income tax deductions.
De facto relationships are treated differently from legal marriages when:
● there are disputes over property
● the partners split up.
De facto spouses may be entitled to the same rights as married persons when:
● the partner dies without a will
● there are compensation or superannuation claims arising from the death of a partner.
PROPERTY DISPUTES
Disputes over property between de facto spouses are dealt with under the De Facto Relationships Act 1996.
Cases are heard in the South Australian courts, not a family law court. However, in some circumstances, a
family law court may deal with a de facto property dispute if it also concerns the children of the
relationship. The Act applies to relationships between a man and a woman where the partners have lived together
for at least three years or where there is a child born to that relationship. The Act only applies to relationships
that ended on or after 16th December 1996 and the couple were living in South Australia for most of the
relationship. Same sex partners or de facto partners who separated prior to this time should seek legal advice. A
claim for property entitlement must be made within 12 months after the relationship ends, unless there are special
reasons.
IS EVERYTHING SPLIT 50/50?
It is not true that if you live with someone they are automatically entitled to half of everything you own. Under the
De Facto Relationships Act, the court can make a decision on a similar basis to how a family law court makes
property orders between married persons. In making a decision the court looks at what property is available for
distribution and the contributions of each partner to the relationship. ‘Property’ includes superannuation.
‘Contributions’ can include, for example, money, property, work around the home, or caring for children. The court
will also consider what any cohabitation agreement says. Generally, the court will look at all your property
together rather than treating each item separately. Even if the family home is in one partner’s name only,
the other partner may still be entitled to a share of the house if they can show that they have made some
contribution to the house or to other property or to child care.
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PROPERTY IN JOINT NAMES
Disputes can be minimised by not putting property into joint names unless each person contributes equally, by
keeping a record of who pays for what, and by keeping receipts. Also, avoid making statements that property is
‘ours’ or ‘shared’ unless that is your real intention. Give special thought to your home. If the home is in joint names,
the other partner will own it all if you die first. You cannot make a will leaving your share to someone else. This may
not be what you want especially if you have children from another relationship. There is another way of putting a
house in both names, called ‘tenants in common’. If you do it this way, you can leave your share of the house to
someone else in your will, and you can sell your portion of the property. Get legal advice if you are not sure which
type of ownership will suit you best.
DEBTS
In both married and de facto relationships, there is no rule that a partner is responsible for the debts of the other. If
you both sign a contract, or if an account is in both names, then you are both responsible for any payments. Also,
beware of signing as a guarantor for a partner as you may become responsible for the debt.
COHABITATION AGREEMENTS
A couple living or intending to live together can draw up a cohabitation agreement saying how property will be
divided should the relationship end. The agreement should include a list of the property owned by each partner and
details of who is to keep which items, or how items will be divided if they separate. To be enforceable, agreements
must be in writing and signed by both partners. You can have your cohabitation agreement “certificated”. This
means that each partner must get independent legal advice (that is, you must each have your own lawyer). Each
lawyer signs the agreement, and each party signs it in the presence of their own lawyer without the other party
present. Having the agreement certificated can give more weight to the agreement in any future dispute.
You can change an agreement at any time, either in writing or verbally, if you both agree. However, if the
cohabitation agreement is a certificated agreement, it can only be changed by another certificated agreement. It is
wise to get legal advice before signing a cohabitation agreement.
CHILDREN
Children have the same rights whether their parents are married or not. They are entitled to be cared for and to be
supported. When a parent dies, children are entitled to share in the property if there is no will, or to challenge a will
that is unfair. It is best if separated parents can decide together how to care for their children. A family counsellor or
mediator can often help you reach agreement. If you cannot agree, a court can make orders about the care of
children. Court orders for the children of de facto couples are decided in the same way as if the parents were
married
CHILD SUPPORT / MAINTENANCE
The parent who cares for a child is entitled to child support payments from the other parent. While a married person
may also be able to get spousal maintenance for him/herself, a de facto spouse cannot. A person who starts a de
facto relationship with a person who already has children does not have a legal obligation to support those children
except in special circumstances. However, Centrelink payments may be affected if you live together. If there is a
dispute about who is the father of the child, you should seek advice about parentage testing procedures.
REGISTERING THE BIRTH
Both parents are jointly responsible for having a child’s birth registered by the Registrar of Births, Deaths
and Marriages. However, the Registrar may accept a registration statement from one parent under special
circumstances. A court can also order that a parent’s details are included on the birth certificate. The parents
can choose any name for their child - it can include the mother’s and/or the father’s surname or any other
name. If they cannot agree, either parent can ask the court to decide. If the father’s name is given but he does
not sign the forms, the Registrar will write a letter (if his address is known) inviting him to state that he is the father.
He is given 30 days to reply. If he does not, his name is not put on the birth certificate. Even if the father’s name is
not on the birth certificate, this does not prevent him from seeking contact with the child, nor does it affect his
obligation to support the child.
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To order copies of this free fact sheet visit
www.lsc.sa.gov.au or telephone 8463 3528.
© 2006 Legal Services Commission
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