De Facto Relationship Introduction
In Australia, de facto relationships have increasingly become an alternative to traditional marriage. However, many members of the Chinese community still hold misconceptions about the legal definition and application of de facto relationships—especially when it comes to confusing the criteria under family law with those under immigration law.
As a solicitor practising in family law, I will explain what a de facto relationship legally means in Australia. Is it the same as marriage? Do you really need to live together for 12 months to qualify?
What Is a De Facto Relationship? The Distinction Between Family Law and Immigration Law
A de facto relationship refers to two individuals who live together as a couple on a genuine domestic basis but are not legally married. It is recognised under both family law and immigration law in Australia, though the criteria differ between the two.
According to the Family Law Act 1975 (Cth), a de facto relationship is established if the following general conditions are met:
- The couple is not legally married to each other;
- They are not related by family;
- They live together as a couple on a genuine domestic basis.
Contrary to popular belief, family law does not require a minimum period of cohabitation (such as 12 months or 2 years) for a relationship to be considered de facto. Instead, courts will assess the overall nature of the relationship based on the following nine factors:
- The duration of the relationship;
- The nature and extent of common residence;
- Whether a sexual relationship exists;
- The degree of financial dependence or interdependence;
- Ownership and use of property;
- The degree of mutual commitment to a shared life;
- Whether the relationship is registered;
- Care and support of children;
- The reputation and public perception of the relationship.
Note: A de facto relationship can be found to exist even where the couple has lived together for as little as a few weeks, provided the above factors are sufficiently satisfied.
The 12-month cohabitation rule applies only in the context of immigration. To lodge a partner visa application based on a de facto relationship, the couple must either:
- Have lived together in a de facto relationship for at least 12 months, or
- Have registered their de facto relationship under state or territory law (if available in that jurisdiction).
If these criteria are not met, the visa application may be refused. Furthermore, once a temporary partner visa is granted, the relationship must continue for at least 2 years before the applicant becomes eligible for permanent residency.
| Legal Area | Time Requirement |
| Family Law | No minimum period; based on holistic assessment |
| Immigration Law | Minimum 12 months of cohabitation or registered status |
Key Legal Differences Between Marriage and De Facto Relationships
Although both forms of relationships may attract similar rights under family law, they are not identical. The major distinctions include:
- Marriage is a legally exclusive union. Entering into another marriage while married constitutes bigamy, a criminal offence;
- De facto relationships are not legally exclusive. A person may, in theory, be in multiple de facto relationships simultaneously (though such arrangements are complex and rare).
Note: For immigration purposes, the de facto relationship must be exclusive.
- Marriage requires a formal legal process (divorce) through the courts;
- De facto relationships may be ended by separation —unless the relationship is registered, in which case an application of revocation is required.
- Married couples can apply for property settlement regardless of the duration of marriage or whether children are involved;
- De facto couples cannot apply for property settlement unless the relationship lasted at least 2 years, or they have a child together, or significant contributions were made by one party.
- After the end of a de facto relationship, parties must initiate property proceedings within 2 years;
- After a divorce, the application must be made within 12 months of the divorce becoming final.
Comparison: Marriage vs. De Facto Relationship in Australian Law
| Aspect | Marriage | De Facto Relationship |
| Exclusivity | Marriage is legally exclusive; bigamy is a criminal offence. | Multiple de facto partners are legally possible, but complex to prove. Immigration law requires an exclusive relationship, otherwise the visa may be refused. |
| Termination | Termination requires a formal divorce through court. | Relationship ends upon separation; no legal procedure required unless registered. |
| Property Division Eligibility | Eligible for property division regardless of marriage length or children. | Only eligible if relationship lasted ≥2 years, involved children, or significant contributions were made. |
| Time Limit for Property Claims | Must apply within 12 months of divorce. | Must apply within 2 years of relationship breakdown. |
Don’t Confuse the Meaning of De Facto Under Family Law and Immigration Law
In Australia, de facto relationships are gaining increasing legal recognition. However, only by clearly understanding the differences between family law and immigration law definitions can you truly protect your rights.
If you are considering applying for a visa based on a de facto relationship, or if your relationship is facing challenges, it is strongly recommended to seek early advice from both family lawyer and immigration lawyer to develop the right legal strategy.
Frequently Asked Questions (FAQ)
Possibly. Under Australian family law, whether a de facto relationship exists is not determined solely by cohabitation or its duration. It is assessed based on nine factors, such as whether you live together, financial dependence, social recognition as a couple, and more.
No, unless you have registered your de facto relationship. Under immigration law, an unmarried partner usually needs to have cohabited for at least 12 months or provide evidence of a registered relationship.
While rights related to property division and child custody are similar, differences include:
- Marriage is legally exclusive, de facto relationships may not be;
- Ending a marriage requires a court divorce, De Facto relationships end by separation;
- Property division rights apply regardless of marriage duration, but de facto requires meeting certain conditions;
- Property division after marriage must occur within 12 months of divorce, but for de facto relationships it’s within 2 years of separation.
Family law may recognise multiple de facto relationships, but this often leads to complex moral, legal, and property disputes. Be especially cautious, as immigration requires the de facto relationship to be exclusive—otherwise, visa applications may be refused.
Generally no. But if you can prove you made a “significant contribution” to the other party’s assets (e.g., contributed to buying property, started a business together), the court may consider your claim as an exception.
You can provide evidence such as:
- Joint bank accounts, rental or purchase agreements;
- Photos of trips or living together;
- Statements from family or friends;
- Records of shared household expenses.
This is more difficult. A de facto relationship generally requires “living together.” Long-distance relationships are less likely to be legally recognised, but exceptions exist if you can prove a high degree of mutual dependence and commitment.
In some states (e.g., New South Wales), registering a de facto relationship:
- Provides strong evidence for immigration applications;
- Avoids the “relationship less than two years” limitation in family law;
- Clarifies your legal relationship status.
You must apply within 2 years of the de facto relationship ending. Courts usually will not accept claims after this period unless there are exceptional circumstances.
No, you do not need to get a divorce like marriage. However, you will need to revoke your de facto registration with the relevant state authority.
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