It is a common misconception that a de facto relationship is only considered to have legally binding consequences in terms of property rights if a couple have been living together for two or more years.

The fact is there is no single legally binding definition of a de facto relationship in Australia.

In Queensland alone, there are at least 40 pieces of legislation that define a de facto relationship in legal terms.

Being a de facto partner or spouse can give rise to many legal rights and obligations, including a de facto spouse potentially having the right to make a claim under a will or to apply for property settlement on separation.

The definition of whether a person is in a de facto relationship or not, is actually determined on the specific circumstances of each case and the piece of legislation you are attempting to rely upon to assert or deny that spousal relationship.

Let me explain

For example, under the Family Law Act, which governs how property and children are considered if a couple who are not married separate, the court will decide on a case-by-case basis if a legal de facto relationship exists.

Under the Act, the court must consider the following:

• The duration of the relationship
• The nature and extent of common residence
• Whether a sexual relationship exists
• The degree of financial dependence or independence, and any arrangements of financial support
• The ownerships, use and acquisition of property
• The degree of mutual commitment to a shared life
• Whether the relationship was registered under a prescribed law of a State or Territory as a prescribed kind of relationship
• The care and support of children
• The reputation and public aspects of the relationship

While there is a two year timeframe required in some circumstances for a relationship to be deemed a de facto relationship, there are instances where a two year timeframe is not required.

This includes when there is a child of the relationship or one partner has made substantial contributions and it would be a serious injustice for the court not to deal with the matter.

The definition of a de facto partner in the Queensland Acts Interpretations Act (a piece of legislation that governs how other pieces of legislation in Queensland are interpreted) is quite similar.

In interpreting the meaning of a de facto spouse in Queensland Legislation, consideration should be given to

• The nature and extent of common residence
• The length of the relationship
• Whether or not a sexual relationship exists or existed
• The degree of financial dependence or independence, and any arrangement for financial support
• Their ownership, use and acquisition of property
• The degree of mutual commitment to a shared life, including the care and support of each other
• The care and support of children
• The performance of household tasks
• The reputation and public aspects of their relationship

Importantly, under this definition there is no minimum timeframe. Many Acts in Queensland rely on this definition when determining if a de facto relationship exists or not.

It all changes when it comes to other areas of law

Despite all of this, some pieces of legislation still require a timeframe. For example, in order to make a claim under a will, the person making the claim must have been the de facto spouse of the deceased for at least two years.

Often taxation acts will also require a minimum timeframe of two years for de facto spouses to be eligible for concession.

There are also circumstances where a de facto spouse does not require a minimum time for legal protection. De-facto spouses are afforded the protection under the Domestic Violence and Child Protection Act, without needing to be together for two years. The Anti-Discrimination Act also does not require a minimum timeframe for a finding that you are in a de facto relationship.

However, each case is different and the outcome can depend on what you are trying to legally achieve or what are the legal circumstances.

If you are in doubt whether or not you are or were in a de-facto relationship I strongly suggest you seek legal advice to gain certainty and clarity around your rights, options and obligations.