skip to content
Law Handbook banner image

De facto relationships

The Relationships Register Act 2016 (SA), which came into operation on 1 August 2017, makes it possible for a couple (irrespective of their sex or gender identity) to register their relationship with the office of Births Deaths and Marriages in South Australia. The eligibility requirements and procedures are similar to those for a marriage and the effect of registration is marriage-like, please see Registered relationships for more information.

Same and intersex relationships are now recognised under both Commonwealth and South Australian laws. Therefore, in this section, heterosexual, same and intersex relationships are all referred to as "unregistered de facto relationships".

An unregistered de facto relationship of any length will be recognised in some areas of law; that is, there is no time requirement for recognition of the relationship. In these cases, the de facto relationship is treated as a marriage. Areas of law covered here:

  • Applying for Legal Aid
  • Social Security Payments and Benefits
  • Tax
  • Children (including recognition of the birth of a child to same-sex female parents)
  • Child Support
  • Intervention Orders
  • Agreements about property
  • Stamp Duty
  • Criminal Code

In other areas of law, a de facto relationship must either be registered or have existed for a certain period of time before it is recognised. Depending on the area of law, an unregistered de facto relationship must have existed for a one year, two year or three year period.

One year for recognition: migration law.

Two years for recognition: property disputes (Family Law Act).

Three years for recognition: State law matters, including

  • Inadequate provision in a will
  • Where there is no will
  • Death caused by a negligent act
  • Superannuation under a State scheme
  • Death caused by crime
  • Workplace death
  • Entering into a surrogacy agreement

NOTE: if there is a child of the relationship, the relevant time period may not be required and a relationship of any length will be recognised.

Registered relationships

The Relationships Register Act 2016 (SA), which came into operation on 1 August 2017, makes it possible for a couple (irrespective of their sex or gender identity) to register their relationship with the office of Births Deaths and Marriages in South Australia.

The Act sets out who may apply to register a relationship, what needs to be included with the application, when the registration may take effect, as well as the procedure for revoking the registration of a relationship.

Who may apply to register a relationship?

Any two people over the age of 18 who are in a relationship as a couple, and irrespective of their sex or gender diversity, may apply to register their relationship, provided that:

  • At least one person resides in South Australia
  • Neither of them is married under the Marriage Act 1961 (Cth)
  • Neither of them is already in a registered relationship (including a registered relationship under a corresponding law declared in the Relationships Register Regulations 2017 (SA))
  • Neither of them is in a relationship as a couple with anyone else
  • They are not related by family (i.e. grandparent, parent, brother or sister)

The application must be accompanied by the prescribed fee, as well as a statutory declaration by each person in the relationship.

See sections 5-6 of the Relationships Register Act 2016 (SA).

For more information about making an application, see the SA Gov- Register a Relationship website.

When does registration take effect?

The Registrar of Births, Deaths and Marriages may register the relationship 28 days after the application is made. The period of 28 days before registration provides for a “cooling off period”. During this time either of the applicants may withdraw the application by giving the Registrar a withdrawal notice using the approved form.

The Registrar must register the relationship as soon as practicable after the end of the “cooling off period” provided that the Registrar is satisfied that the relationship may be registered (in other words, it meets the eligibility requirements of section 5 of the Act) and neither applicant has withdrawn the application.

Registration takes effect upon entry by the Registrar into the Register of Births, Deaths and Marriages.

See sections 7, 8 and 9 of the Relationships Register Act 2016 (SA).

What if our relationship is registered in another state or country?

The Relationships Register Regulations 2017 (SA) [reg 7] provide a list of laws of other jurisdictions declared to be corresponding laws. A law of another jurisdiction may be declared to be a corresponding law if, under that law, the relationship must be:

  • between two people over the age of 18
  • entered into with the consent of both people
  • between people who are not related by family
  • between people who are not already married under the Marriage Act 1961 (Cth)
  • between people who are not already in a relationship that is registered or formally recognised under that law

If you are in a registered relationship under a corresponding law, you will be taken to be in a registered relationship under South Australian law [s 27] and may apply to the Registrar for a certificate to that effect.

This application must be accompanied by evidence of the identity and age of each of the applicants, and evidence that the relationship between them is a corresponding law registered relationship, as well as the prescribed fee.

See sections 26 and 27 of the Relationships Register Act 2016 (SA).

Can we hold a ceremony upon the registration of our relationship?

If you wish you can hold a ceremony, but it is not a requirement. The Registry of Births, Deaths and Marriages will hold ceremonies at Chesser House, performed by registry staff. You can nominate preferred date/s for a ceremony in your application for registration. Alternatively, you can arrange to have a private ceremony.

What if we choose not to register our relationship? Is our relationship still legally recognised?

If you choose not to register your relationship, your relationship may still be recognised for some purposes, such as:

  • Applying for Legal Aid;
  • Social Security Payments and Benefits;
  • Tax;
  • Reproductive technologies;
  • Parenting Orders;
  • Child Support;
  • Intervention Orders;
  • Agreements about property;
  • Stamp Duty;
  • Criminal Code.

For other purposes, however, your relationship must generally have existed for a period of one, two or three years, to be recognised, and a declaration of your relationship may be necessary.

Below are some of the most common time requirements for recognition and the purposes to which they apply.

One year for recognition: migration (Migration Act)

Two years for recognition: property disputes (Family Law Act)

Three years for recognition: State law matters, including

  • Inadequate provision in a will;
  • Where there is no will;
  • Death caused by a negligent act;
  • Superannuation under a State scheme;
  • Death caused by crime;
  • Workplace death;
  • Entering into a surrogacy agreement.

NOTE: if there is a child of the relationship, the relevant time period may not be required and a relationship of any length will be recognised.

See De facto relationships for more information about these time requirements.

For further comparison of unregistered de facto relationships, registered relationships and marriage, see also the table below.

Unregistered de facto relationships, registered relationships and marriage compared
Unregistered de facto relationship Registered Relationship Marriage
Application/Notice of commencing relationship lodged with N/A Registrar for Births, Deaths and Marriages Authorised celebrant
When relationship commences/may commence N/A 28 days later One month later
Fee for registration N/A $108 N/A
Ceremony N/A Optional Yes
Ended by Separation

Death; Marriage; Revocation

Death; Separation and divorce
Requirements of ending Separation

Application setting out that a party wishes to revoke the registration

If there is no separation, the relationship may continue as an unregistered de facto relationship

Application setting out that the marriage has broken down irretrievably evidenced by 12 months separation
Application to end relationship lodged with N/A Registrar for Births, Deaths and Marriages Federal Circuit Court
When end takes effect Upon separation 90 days after application to revoke registration, but marriage can otherwise end a registered relationship sooner 1 month after divorce order
Fee for ending N/A $108 $900; reduced fee $300

Recognition for various purposes

Centrelink Yes Yes Yes
Income tax Yes Yes Yes
Migration Yes, after 1 year, child or waiver Yes Yes
Property Settlement Yes, after 2 years, child or waiver Yes Yes
Where there is no will Yes, after 3 years, child or declaration* Yes Yes
Inadequate provision in a will Yes, after 3 years, child or declaration* Yes Yes
Consent to medical treatment Yes, after 3 years, child or declaration* Yes Yes
Nationwide recognition Yes, but varying requirements for recognition No, registered relationships are not yet recognised in WA or NT Yes

*These requirements for recognition apply in SA only: requirements may vary from State to State.


Does registering our relationship remove the time requirements?

Yes, because the definition of “domestic partner” in the Family Relationships Act 1975 (SA), as well as other relevant South Australian and Commonwealth legislation, has been amended to include a person who is in a registered relationship with the other person under the Relationships Register Act 2016 (SA), or a corresponding law registered relationship.

In the absence of registration, the duration of the relationship or birth of a child requirements continue to apply, see Three year time requirement - State law matters

See s 11A of the Family Relationships Act 1975 (SA).

If my registered relationship partner does not provide for me in their will, do I have any recourse upon their death?

Yes, because the definition of “domestic partner” in the Inheritance (Family Provision) Act 1972 (SA) has been amended to include a person who was in a registered relationship with the deceased under the Relationships Register Act (SA), or a corresponding law registered relationship, at the time of the deceased’s death, or at some earlier date.

A domestic partner is a person who can apply for re-allocation of the deceased’s estate.

In the absence of registration, a domestic partner must first be declared so under the Family Relationships Act 1975 (SA).

See sections 4 and 6 of the Inheritance (Family Provision) Act 1972 (SA).

If either or both partners do not have a will, does the registration of their relationship offer any protection to them in the event of either of their death?

Yes, because the definition of “domestic partner” in the Administration and Probate Act 1919 (SA) has been amended to include a person who is in a registered relationship with the deceased under the Relationships Register Act (SA), or a corresponding law registered relationship, at the time of the deceased’s death.

A domestic partner is provided for in the same way as a spouse in the distribution of the estate.

See sections 4 and 72G Administration and Probate Act 1919 (SA).

In the absence of registration, a domestic partner must first be declared so under the Family Relationships Act 1975 (SA).

If we separate and have a dispute about dividing our property, can we apply to the Family Law Courts to resolve our dispute?

The Family Law Act 1975 (Cth) states that if the relationship has been registered in a State or Territory of Australia under laws for the registration of relationships, then an application for property settlement can be made. This must generally be made within 2 years of the end of the relationship.

In the absence of registration, a two year time or birth of a child requirement generally applies.

See section 90SB of the Family Law Act 1975 (Cth).

Is a registered relationship recognised faster for immigration purposes?

The one year time requirement, that otherwise applies to partner visas, does not apply if the de facto relationship is registered in a State or Territory of Australia under laws for the registration of relationships. There may also be other compassionate or compelling reasons (such as the birth of a child) for this time requirement to be waived. However, in any case, the relationship must also meet the general definition of a de facto relationship under section 5CB of the Migration Act 1958 (Cth), which includes that the partners have a mutual commitment to a shared life to the exclusion of all others, that their relationship is genuine and continuing, that they live together, or at least do not live separately and apart on a permanent basis, and that they are not related by family.

Does registering our relationship automatically revoke a previous will?

Yes, the commencement of a registered relationship under the Relationships Register Act 2016 (SA) automatically revokes a will unless the will was made in contemplation of the registered relationship and this was stated in the will. In contemplation of the registered relationship means that the testator was planning to commence the registered relationship at the time of making the will, and the will is made with this in mind.

The end of a registered relationship, under the Relationships Register Act 2016 (SA), revokes any bequest to the former partner or appointment of the former partner as executor unless it is clear from the will that the end of the registered relationship is to have no effect.

It is wise to seek legal advice about a will after commencing a registered relationship.

See sections 20 and 20A of the Wills Act 1936 (SA).

Can a registration be challenged?

A court may declare the registration of a relationship void if:

  • when the relationship was registered, registration under the Act was prohibited, see Who may apply to register a relationship? above
  • the agreement of either partner to the registration was obtained by fraud, duress or other improper means
  • when the relationship was registered, either partner was mentally incapable of understanding the nature and effect of registration

If a registration is void, the Registrar must note this in the Register.

See section 14 of the Relationships Register Act 2016 (SA).

How can I end my registered relationship?

Either or both of the persons in a registered relationship may apply to revoke the registration of the relationship. If the application is made by only one person, that person should accompany the application with proof of service of the notice on the other person. A “cooling off period” of 90 days applies. During this time, an applicant may withdraw the application for revocation. The Registrar must revoke the registration as soon as practicable after the end of the cooling off period. A registered relationship will be taken to end in the following circumstances:

  • On the death of a person in the relationship
  • On the marriage of a person in the relationship
  • When the Registrar makes an entry into the Register following an application for the revocation of the registration

See sections 10-13 of the Relationships Register Act 2016 (SA).

Should we just get married?

A registered relationship is similar to marriage in that it provides automatic recognition for various legal purposes in South Australia. However, there are two main differences between them.

The first is that marriage can provide recognition both interstate and internationally.

The second is that marriage cannot end as quickly or abruptly as a registered relationship. A marriage cannot officially end unless it has broken down irretrievably evidenced by 12 months separation, see Divorce. A registered relationship, by contrast, can end by application by either partner without proof of actual separation, after 90 days cooling off, or sooner by way of the marriage of either partner.

For further comparison, see the table below.

Unregistered de facto relationships, registered relationships and marriage compared
Unregistered de facto relationship Registered Relationship Marriage
Application/Notice of commencing relationship lodged with N/A Registrar for Births, Deaths and Marriages Authorised celebrant
When relationship commences/may commence N/A 28 days later One month later
Fee for registration N/A $108 N/A
Ceremony N/A Optional Yes
Ended by Separation

Death; Marriage; Revocation

Death; Separation and divorce
Requirements of ending Separation

Application setting out that a party wishes to revoke the registration

If there is no separation, the relationship may continue as an unregistered de facto relationship

Application setting out that the marriage has broken down irretrievably evidenced by 12 months separation
Application to end relationship lodged with N/A Registrar for Births, Deaths and Marriages Federal Circuit Court
When end takes effect Upon separation 90 days after application to revoke registration, but marriage can otherwise end a registered relationship sooner 1 month after divorce order
Fee for ending N/A $108 $900; reduced fee $300

Recognition for various purposes

Centrelink Yes Yes Yes
Income tax Yes Yes Yes
Migration Yes, after 1 year, child or waiver Yes Yes
Property Settlement Yes, after 2 years, child or waiver Yes Yes
Where there is no will Yes, after 3 years, child or declaration* Yes Yes
Inadequate provision in a will Yes, after 3 years, child or declaration* Yes Yes
Consent to medical treatment Yes, after 3 years, child or declaration* Yes Yes
Nationwide recognition Yes, but varying requirements for recognition No, registered relationships are not yet recognised in WA or NT Yes

*These requirements for recognition apply in SA only: requirements may vary from State to State.


No time requirement

Recognition of unregistered de facto relationships (irrespective of sex or gender identity)

Summary of areas:

  • State Domestic Partner laws where there is a child of the relationship;
  • Applying for Legal Aid;
  • Centrelink Payments and Benefits;
  • Tax;
  • Reproductive technologies;
  • Court orders for the care of children;
  • Child Support;
  • Intervention Orders;
  • Agreements about property;
  • Stamp Duty;
  • Criminal Code.

State Domestic Partner laws where there is a child of the relationship

In situations where there would normally be a three year period before the relationship is recognised, if there is a child of the relationship, then this period does not apply and the relationship is recognised as a domestic partnership. See Three Year Time Requirement.

Applying for Legal Aid

When applying for Legal Aid, the financial position of any 'financially associated person' is considered, as well as that of the applicant. A financially associated person will usually include a de facto partner. There is no set period for which the applicant must have been in a relationship with a financially associated person. See Applying for legal aid.

Centrelink Payments and Benefits

The Social Security Act 1991 (Cth) states that whether or not an unregistered de facto relationship exists depends on all the circumstances of the relationship, including the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, any sexual relationship between the people and the nature of the people's committment to each other. If a couple live together, they will most certainly be considered to be in a de facto relationship, albeit an unregistered one.

A de facto relationship cannot be said to exist between two people, if they are below the age of consent in the State or Territory in which they live, if they are in a prohibited family relationship, or if they are living separately and apart on a permanent or indefinite basis [s 4]. The couple must generally be said to be living separately and apart, in both a physical and emotional sense, on a permanent and indefinite basis [see Guide to Social Security Law 2.2.5.20].

Registered relationships are automatically recognised.

For the purposes of assessing a person' s entitlement to social security payments, the income of a person's de facto partner is taken into account.

Similarly, entitlements to payments and benefits are extended to partners. Possible payments and benefits include:

  • Partner concession card benefits;
  • Bereavement allowance if a partner dies;
  • Exemption of the family home from the asset test when one partner enters a nursing home and the other partner continues to reside there.

Children of both opposite sex and same sex couples are covered for the purposes of social security and family assistance.

Tax

De facto relationships are recognised under taxation law as being between two people of any sex, who llive together on a genuine domestic basis as a couple. Same sex couples have been treated the same way as opposite sex couples and married couples for tax returns from 2009-2010 onwards. Registered relationships are automatically recognised.

Reproductive technologies

As of 21 March 2017, reproductive technologies are accessible if it would be “unlikely that, in the person’s circumstances, the person will become pregnant other than by assisted reproductive treatment” [see Assisted Reproductive Treatment Act 1988 (SA) s 9(1)(c)(i)]. The previous requirement of infertility has been removed. That requirement had acted to prohibit fertile same-sex couples from accessing reproductive technologies. Prior to 2010, it was also a requirement that those seeking treatment be either married or in a de facto relationship of at least 5 years duration. There is not now any requirement of this nature.

Court orders for the care of children

Children have the same rights whether their parents are married or in a registered relationship 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. If parents separate, parents can decide together how to care for their children. A family counsellor or mediator can often help reach agreement. If parents cannot agree, the Family Law Courts can make orders about the care of children - see Arrangements for children. Parenting orders for the children of opposite sex and same sex couples are decided in the same way as if the parents were married.

Child Support

A person caring for a child born outside marriage can claim child support from the other parent in the same manner as for a child of a married relationship. Where the child is in the care of the mother and the father's name is not on the birth certificate, and he does not sign a statutory declaration to formally admit paternity, it will be necessary to first establish paternity in the Family Court.

A separated parent from a same-sex relationship can apply for child support from a co-parent who is recognised as a parent under the Family Law Act 1975 (Cth).

Centrelink may also require parents who are receiving Family Tax Benefit to apply for an assessment of child support payable by the co-parent.

It is suggested that you contact the Child Support Unit at the Legal Services Commission of South Australia (08 8111 5576) if you wish to make an application for child support following the breakdown of a relationship.

Intervention Orders

De facto or former de facto partners with a relationship of any length of time may apply for an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009 (SA). Abuse by a current or former partner is defined as domestic abuse and a de facto relationship meets the definition of a ‘relationship’ under the Act [s 8(8)]. See: Intervention Orders.

Agreements about property

It is possible to make a binding financial agreement under part VIIIAB of the Family Law Act 1975 (Cth) in anticipation of entering a de facto relationship or during a de facto relationship or at the end of a relationship. For the agreement to be binding, certain requirements must be followed - in particular, both parties must receive independent legal advice. For the agreement to take effect following the breakdown of the relationship, a separation declaration must be made [s 90UF].

Financial agreements under the Family Law Act 1975 (Cth) can deal with the property and financial resources of the parties, and maintenance of either of the parties.

Making a written agreement clarifying the property owned by each partner and details of who is to keep which items, or how items will be divided, if the relationship ends is a prudent step. Disputes can often be prevented by being clear in advance.

Future disputes can be minimised by not putting property into joint names unless each person contributes equally, and by keeping a record of who pays for items purchased, as well as keeping receipts. Also, avoid making statements that property is 'ours' or 'shared' unless that is your real intention.

It is best to make an agreement before living together, but it can also be done during the relationship or after it has ended.

Stamp Duty

Spouses and domestic partners are exempt from stamp duty on the:

  • transfer of an interest in their shared principal place of residence (for example, one partner may own the house they live in, and they may agree that the other partner also be registered on the title as an owner); or
  • the transfer of registration of a motor vehicle between them.

[Stamp Duties Act 1923 s71CB]

Domestic partners are defined for the purposes of stamp duty in the same was as they are defined under the Domestic Partners Property Act 1996 (SA) to include someone who is about to enter into or has been in a registered relationship or someone who is about to enter or has lived in a close personal relationship, without any time requirement.

Criminal Code

The Criminal Code 1995 (Cth) adopts the definition of a de facto relationship from the Acts Interpretation Act 1901 (Cth). Under that Act, a de facto relationship is defined broadly and no single factor, including the duration of the relationship, is determinative [s 2F].

One year time requirement - migration

Recognition of unregistered de facto relationships (irrespective of sex or gender identity)

For an unregistered de facto relationship to be recognised under the Migration Act 1958 (Cth), the partners must have been in the relationship for a period of at least 12 months before lodging the visa application.

However, the 12 month relationship requirement can be waived if there are compassionate and compelling circumstances, for example, if there is a dependant child of the relationship or de facto relationships are illegal in the country in which one or both of the couple reside.

The 12 month relationship requirement does not apply where:

  • the applicant is the partner of a person who holds (or held) a permanent humanitarian visa and, before the grant of their visa, the relationship was declared to the Department of Home Affairs; or
  • the relationship is registered under a law of a State or Territory, see Registered relationships.

Same and/or intersex relationships

Same and/or intersex de facto couples and their children are recognised in the definition of ‘members of the family unit’ for visa purposes, in the same way that heterosexual de facto partners and their children are recognised.

Two year time requirement - property disputes

Recognition of unregistered de facto relationships (irrespective of sex or gender identity)

Property disputes and spousal maintenance

In the area of property disputes and spousal maintenance on the breakdown of a relationship, an unregistered de facto relationship must generally have existed for two years or there must be a child of the relationship before the relationship is recognised and a claim for property settlement can be made to the court. (If the former partners have made or make a binding financial agreement under Part VIIIAB Family Law Act 1975, there is no time period for which the relationship must have existed before the agreement can be enforced - see Dividing property and Coming to an agreement.)

Applicable law

De facto relationship property disputes and claims for spousal maintenance are covered by the Family Law Act 1975 (Cth). Prior to 1 July 2010, South Australian law covered these disputes.

In some cases, there may be doubt about whether the old State law still applies, or whether the Family Law Act 1975 (Cth) applies. For example:

  • What happens if I have an agreement under the old State law?
  • What happens if we broke up before 1 July 2010?

The scenarios at the bottom of the page explain which law applies during the transition phase.

What is a de facto relationship under the Family Law Act 1975?

Under the Family Law Act 1975 (Cth) a de facto relationship is one where the couple are not legally married to one another, are not related by family, and where they live together on a genuine domestic basis [s 4AA]. Same and/or intersex relationships are included in this definition [s4AA(5)(a)].

A de facto relationship can also be recognised where one of the persons in the relationship is legally married to another or is in another de facto relationship [s4AA(5)(b)].

What factors does the Court consider in determining if a de facto relationship existed? [s 4AA(2)]

  • the duration of the relationship
  • the nature and extent of a common residence
  • whether a sexual relationship exists
  • the degree of financial dependence or interdependence between the couple and any arrangements for financial support between them
  • the ownership, acquisition and use of their property
  • degree of mutual commitment to a shared life
  • whether the relationship is or was registered under a law of a state or territory as a prescribed kind of relationship (there is now provision for this registration in South Australia under the Relationships Register Act 2016 (SA))
  • the care and support of children
  • public aspects and reputation of the relationship.

None of these factors is a necessary requirement [s4AA(3)].

Other factors may also be taken into account (s4AA(4)].

See Jonah & White[2011]FamCA 221 for an example where a de facto relationship was found not to exist (go to Summary).

Conditions that must be met before an application for property settlement can be made [s 90SB and s 90SD and/or s 90SK]

Relationship conditions [s 90SB]

One of the following conditions must exist:

  • the relationship must have existed for a period of at least 2 years (this can include more than one period providing it totals at least 2 years), or
  • there is a child of the relationship, or
  • one of the partners has made substantial financial or non-financial contributions to their property or as homemaker or parent, and serious injustice would result to that partner if an order was not made (that is, the 2 year requirement can be waived), or
  • the de facto relationship has been registered in a State or Territory under laws for the registration of relationships (there is now provision for this registration in South Australia under the Relationships Register Act 2016 (SA)).

Geographical requirements [s90SD and/or s90SK]

Certain geographical requirements must also be met in order to make an application for de facto property settlement in the Family Court. The question of geographical requirements will only be an issue if the parties have lived in Western Australia.

Time limit for making an application

An application for de facto property settlement must normally be made within 2 years of the end of the relationship [s44 (5) Family Law Act 1975]. An application may be made after this time if the court is satisfied under s44 (6):

  • hardship would be caused to the party or a child if leave were not granted, or
  • if the application is for maintenance, that, at the end of the standard two year application period, the person is unable to support themselves without an income tested pension, allowance or benefit.

What can be dealt with in a property settlement?

De facto couples can make claims under the Family Law Act 1975 (Cth) for:

An application for property settlement or spousal maintenance can be made to either the Family Court or the Federal Circuit Court (see Which court?).

Stamp Duty

Stamp duty is not payable on an agreement made under the Family Law Act, or any transfer of property or motor vehicle between former de facto partners pursuant to a Family Law agreement or Family Court order [see Stamp Duties Act 1923 s71CA].

SCENARIOS

Deciding whether the Family Law Act applies or State law applies

Following the referral of State powers over de facto property law to the Commonwealth, there is a transition phase when some cases will still be dealt with under State law.

Scenario 1

  • breakdown on or after 1 July 2010
  • no financial agreement under the Domestic Partners Property Act 1996 (SA)
  • relationship conditions [s90SB] satisfied
  • geographical requirements [s90SD  and/or s90SK] met
  • by 2012 you will need to worry about 2 year limitation period

Pt VIIIAB  Family Law Act 1975 applies. That is, an application for property settlement can only be made to the Family Court.

 

 

Scenario 2

 

  • breakdown on or after 1 July 2010
  • a certified agreement under the Domestic Partners Property Act 1996 made before 1 July 2010 exists
  • relationship conditions [s90SB] satisfied
  • geographical requirements [s90SD  and/or s90SK] met
  • by 2012 you will need to worry about 2 year limitation period

The agreement is a Pt VIIIAB financial agreement to the extent the agreement deals with property, financial resources, maintenance and incidental or ancillary matters. That is, the agreement can be enforced in the Family Court (and not a State court).

 

  

Scenario 3

  • on or after 1 July 2010
  • two people wish to make a financial agreement:

    - in contemplation of entering a de facto relationship, or

    - during a de facto relationship, or

    - after the breakdown of a de facto relationship (2 year limitation period)

Pt VIIIAB  Family Law Act 1975 applies.  That is, to be enforceable, the financial agreement must comply with the Family Law Act.

 

  

Scenario 4

  • breakdown before 1 July 2010
  • relationship conditions [s90SB] satisfied
  • geographical requirements [s90SD  and/or s90SK] met

AND

- no order (apart from an interim order) has been made re property or maintenance

- no certified domestic partnership agreement is in force

- if there was a certified domestic partnership agreement and it has ceased to have effect, no property has been distributed or any maintenance paid under it

THEN:  'opting in' is possible. That is, you may choose to go to the Family Court rather than the State courts to arrange your de facto property settlement. Be aware of the 2 year limitation period.

If opting in is possible, you will need to see a private solicitor to ascertain whether it is desirable.  The Family Law Act 1975 also requires that you see a private solicitor before you opt in.

If opting in is not desirable, that is, if you choose not to use the Family Court although it is possible, then State law applies.

Note that:

  • opting in must be an unconditional choice
  • the choice to opt in is irrevocable
  • both parties must choose to opt in
  • the choice must be in writing
  • independent legal advice must be obtained and certified.

Scenario 5

  • breakdown before 1 July 2010

AND

  • an order (apart from an interim order) has been made re property or maintenance, or
  • a certified domestic partnership agreement is in force, or
  • if there was a certified domestic partnership agreement and it has ceased to have effect, property has been distributed or maintenance has been paid under it

THEN: State law applies (opting in to use the Family Court is not possible).

 
 
 
 

Three year time requirement - State law matters

Recognition of unregistered de facto relaitonships (irrespective of sex or gender identity)

Summary of areas:

  • Inadequate provision in a will;
  • Where there is no will;
  • Death caused by a negligent act;
  • State superannuation;
  • Death caused by crime;
  • Workplace death;
  • Entering into a surrogacy agreement.

All the situations where an unregistered de facto relationship must have existed for three years to be recognised, unless there is a child of the relationship (when there is no time requirement), come under South Australian law. In these situations, the relationship must meet the alternative definition of a 'domestic partnership' under the Family Relationships Act 1975 (SA), see below.

Note that companion relationships are also included in the definition of a domestic partnership and are thus recognised in these areas of South Australian law, see Companion relationships and property disputes.

What is a domestic partnership?

The definition of a domestic partnership for most areas of South Australian law is set out in the Family Relationships Act 1975 (SA) [s 11A]. Under this Act, a 'domestic partnership' is two adults (whether or not related by family and irrespective of their sex or gender identity) in either:

  • a 'registered relationship'; or
  • a 'close personal relationship' (that is, living together as a couple on a genuine domestic basis) where the partners have been together for at least three years, or during four years for periods totalling three years, or have had a child together.

A domestic partnership includes couples of any sex or gender identity (that is, same, intersex or heterosexual relationships), and companion relationships. Companion relationships can include relationships between people who are related to each other as well as where people are not related and not in a sexual relationship, but are 'living together as a couple on a genuine domestic basis'.

Domestic partnerships does not include marriage or situations where care is provided by one person to the other for fee or reward.

If the unregistered de facto relationship is less than 3 years in duration and there are no children

If the relationship was for less than three years and there is no child of the relationship, either of the former partners may seek a declaration from the Court that they were domestic partners, on the basis that they were living together in a close personal relationship and that the interests of justice require that a declaration be made. This application is made under section 11B of the Family Relationships Act 1975 (SA), which sets out what the Court must consider when making its decision. An application for a declaration must be supported by an affidavit indicating the names and addresses of anyone whose interests may be affected by the declaration [Magistrates Court (Civil) Rules 37(6)] and served on all these persons [r 37(7)].

What steps have to be taken to have an unregistered de facto relationship recognised?

For most legal purposes, partners do not have to take any formal step to have the relationship recognised. Once criteria are met, the relationship is recognised automatically. See No time requirement for recognition of an unregistered de facto relationship. If there is doubt, the court can be asked to make a declaration as to whether two people were, on a given date, domestic partners.

For some legal purposes, outlined below, a formal declaration from a Court is required before an unregistered de facto relationship can be recognised as a domestic partnership.

Inadequate provision in a will

A spouse or domestic partner who has not been adequately provided for under the deceased partner's will, may apply under the Inheritance (Family Provision) Act 1972 (SA), for a sum of money from the deceased's estate [s 6(a)]. The definition of a domestic partner under this Act includes a person who was in a registered relationship with the deceased under the Relationships Register Act (SA), or a corresponding law registered relationship, at the time of the deceased's death, or at some earlier date.

Before this claim can be made, a partner to an unregistered de facto relationship must first obtain a declaration from the Court that, under the Family Relationships Act 1975 (SA), he or she was a 'domestic partner' on the date of death, or at some earlier date.

Where there is no will

If the deceased did not leave a will, a spouse or domestic partner is entitled under the intestacy provisions of the Administration and Probate Act 1919(SA) [s 72h(1)] to share in the distribution of the estate. The definition of a domestic partner under this Act includes a person who was in a registered relationship with the deceased under the Relationships Register Act (SA), or a corresponding law registered relationship, at the time of the deceased's death.

Before this claim can be made, a partner to an unregistered de facto relationship must first obtain a declaration from the Court that, under the Family Relationships Act 1975 (SA), he or she was a 'domestic partner' on the date of death.

Death caused by a negligent act

If the death was caused by the negligent act of a third party (for example, in a road accident), the surviving partner, as defined under the Family Relationships Act 1975 (SA), may claim damages from the third party. These damages will cover both economic loss (that is, loss of future financial support) and solatium (emotional loss).

Before this claim can be made, a partner to an unregistered de facto relationship must first obtain a declaration from the Court that he or she was a 'domestic partner' on the date of death [see Civil Lilability Act 1936 (SA)].

State superannuation

If the deceased was a contributor to a State superannuation scheme, the putative spouse (meeting a similar definition to that under the Family Relationships Act 1975 (SA) i.e. registered relationship, three year time requirement or child born of the relationship) may apply to the administrators of the scheme for the spouse's pension [see, for example, Southern State Superannuation Act 2009 (SA) s 7].

Before this claim can be made, a partner to an unregistered de facto relationship may first need to obtain a declaration from the Court that he or she was a 'putative spouse' at the relevant time.

Death caused by crime

Under the Victims of Crime Act 2001 (SA) a domestic partner, as defined under the Family Relationships Act 1975 (SA), is able to claim compensation for the death of their partner resulting from a homicide. If a partner died as the result of a criminal injury the surviving partner has a right to be represented as a dependant of the deceased in order to collect compensation.

Although it is necessary for an unregistered de facto relationship to meet the alternative definition under the Family Relationships Act 1975 (SA), namely the three year time or birth of a child requirements, it may not be necessary to obtain a declaration under that Act [see Victims of Crime Act 2001 (SA) s 4].

Workplace death

If an employee is killed at work and their partner, as defined under section 4(1) of the the Return to Work Act 2014 (SA), or his or her children were wholly or partially dependent on the employee, then the partner and children can make a claim under the Return to Work Act 2014 (SA) [ss 59,61].

The definition of a domestic partner under the Return to Work Act 2014 (SA) is the same as that under the Family Relationships Act 1975 (SA), except for the following additional provision: if the person has been living with the worker for a substantial part of the preceding three or four years and Return to Work considers it is fair and reasonable that the person be regarded as the domestic partner of the worker for the purposes of the Act, then the person can make a claim as a domestic partner.

Entering into a surrogacy agreement

In order to enter into a surrogacy agreement, partners to an unregistered de facto relationship must have been living in a marriage-like relationship (irrespective of their sex or gender identity) for three years, or for periods aggregating at least three years in the previous four years.

There is no time requirement for married couples or couples in a registered relationship [s 10HA Family Relationships Act 1975 (SA)].

Property disputes not covered by the Family Law Act

For those who were in an unregistered de facto relationship that is not covered by the Family Law Act 1975 (Cth) (see Two year time requirement), the following principles apply. Note that there is no longer any state legislation that covers de facto relationships and property issues.

Property held in joint names

If the property in dispute is in joint names, the Court will usually order that the property be divided equally unless it can be shown that one person should receive more. If it is in the name of one partner only, there are several legal concepts that can be used by the other partner to support a claim to an interest in the property. Whichever remedy, or combination of remedies, is used by a partner who is seeking to enforce property rights, each case finally depends on its facts. The following list sets out the most common of the possible remedies. The law in this area is extremely complex and legal advice should be sought by anyone who wants to make a claim under any of these arrangements.

Property held for the benefit of the other party

If one partner clearly states that he or she holds certain property for the benefit of the other, this amounts to an express declaration of trust. This is not effective as far as real property (a house or land) is concerned unless the declaration is in writing. The only exception is in cases where the lack of writing would amount to equitable fraud.

There is an implied trust where property is held by one person with an unexpressed or presumed intention that some other person has an interest in it - for example, where, on the purchase of property, some of the purchase price is paid by someone other than the purchaser. To find out if there is an implied trust in a particular case, it is necessary to examine:

  • what kind of contribution was made and whether that contribution was intended as a gift;
  • if there was a gift, what was the real, rather than the presumed, intention of the person making the gift.

A constructive trust is difficult to define. It could be said that it is a trust imposed by the court in order to satisfy the demands of justice and good conscience, without any reference to the express or presumed intentions of the person involved. Courts have found that a constructive trust exists in some cases where one party worked on building or renovating a house, but not in others where there was responsibility for ordinary housework and maintenance. Decisions have gone either way depending on the particulars of each individual circumstance.

Conferring property interests on the other party

Partners can confer property interests on one another by the use of an express contract. Express contracts should be in writing and conform with the normal laws of contract. Sometimes a court will find that there was an implied contract. The court presumes that, as reasonable people, the partners would have agreed to a certain contract. Its use is limited to appropriate situations.

Recognising money spent on property

A partner may rely on the concept of proprietary estoppel in support of a property claim where the partner has spent money or otherwise disadvantaged him or herself:

  • while acting on the mistaken belief that he or she already owns, or will own, an interest in property sufficient to justify the expenditure;
  • while the real owner of the property actively or passively encourages the mistaken belief;
  • where there is no bar under the rules of equity to the granting of a remedy.

Gifts

Legally binding gifts between partners can be made in three ways:

  • by clear words in a deed (document);
  • when a person intends to pass property to the recipient and actually delivers it to the recipient;
  • when a person intends to pass property to the recipient and the person's actions amount to the delivery of the property to the recipient.

Mediation services

The Family Mediation Service at Relationships Australia, Centacare, or private mediators can assist in resolving de facto property disputes. There is usually a fee for these services.

Companion relationships and property disputes

A companion relationship is a relationship between two adults living together as a couple on a genuine domestic basis, but who are not married or in a de facto relationship. They can be related by family and be of the same or opposite sex. A relationship where one person provides the other with domestic support and/or personal care for payment is not included in the definition.

Property disputes between companion couples where the relationship has existed for more than three years are covered by the Domestic Partners Property Act 1996.

If a former partner wishes to apply to the court to resolve a dispute over property, all of the following requirements must be met [Domestic Partners Property Act 1996 (SA) s 9(1)]:

  • the applicant or respondent must be resident in South Australia when the application is made;
  • the partners must have been resident in the State for the whole or a substantial part of the period of the relationship;
  • the relationship must have existed for at least three years [Domestic Partners Property Act 1996 (SA) s 9(2)]. The three years spent living together do not necessarily have to be continuous. If there have been separation periods; during the relationship, the distinct periods of cohabitation may, in some cases, be added together to calculate the duration of the relationship [Wren v Chandler [2004] SADC 128].

The Act only applies to companion relationships that ended on or after 1 June 2007.

For companion relationships not covered by the Domestic Partners Property Act 1996 (SA), rights to property on the breakdown of a relationship are governed by the ordinary rules of property, trusts and contract.

Time limits

Applications must be made within one year after the end of the relationship unless the court, after considering the interests of both parties, is satisfied that an extension is necessary to avoid serious injustice to the applicant [Domestic Partners Property Act 1996 (SA) s 9(3)].

What is property?

The type of property that a court can consider is broadly defined and includes:

  • a prospective entitlement or benefit under a superannuation or retirement scheme;
  • property held under a discretionary trust that could, under the terms of the trust, be vested in the person or applied for the person's benefit;
  • property over which the person has a direct or indirect power of disposition and which may be used for the person's benefit;
  • any other valuable benefit.

[Domestic Partners Property Act 1996 (SA) s 3]

Which court?

Given the potential future size of superannuation entitlements it is very difficult to determine in which court to issue proceedings.

If the total amount is $6 000 or less [Domestic Partners Property Act 1996 (SA) s 13] the application is a minor civil action in the Magistrates Court [note that this section has not been amended to reflect changes in jurisdictional limit of the Magistrates Court minor civil action jurisdiction - although this jurisdiction has a limit of $12 000 as of 1 August 2016, only domestic partnership matters up to $6 000 are treated as minor statutory proceedings].

If proceedings were commenced before 1 July 2013, or if a claim arose before 1 July 2013 (that is, if the relationship ended before that date) then claims up to $80 000 are dealt with by the general civil division of the Magistrates Court.

For claims arising after 1 July 2013, amounts up to $100 000 are dealt with in the Magistrates Court.

Larger claims may be taken in the Supreme or District Courts [Domestic Partners Property Act 1996 s 3(1)].

Principles used by the court in property disputes

The Domestic Partners Property Act 1996 does not give a person an 'automatic' share of their partner's property. There are a number of considerations that a court will consider when determining what entitlements a person has.

A court has powers [Domestic Partners Property Act 1996 (SA) ss 11,14] to consider matters relevant to the just and equitable division of property and in particular will consider:

  • the financial and non financial contributions made directly or indirectly by or on behalf of the partners to the acquisition, conservation, or improvement of property of either or both partners; or the financial resources of both partners;
  • the contributions (including home-making or parenting contributions) made by either of the partners to the other partner or to children of either of the partners;
  • any relevant domestic partnership agreement. If it is a certified agreement that states the Court has no power to set aside or vary the agreement, any order for the division of the property must be consistent with the terms of the agreement;
  • all interests in the property to which the proceedings relate;
  • other relevant matters, which includes the length of the relationship and the immediate financial needs of the parties [Hogg v Roberts[2003] SASC 410; (2003) 87 SASR 248].

When deciding the division of property, the court may make orders it considers necessary to divide the property of either or both of the partners between them in a way that is just and equitable [Domestic Partners Property Act 1996 (SA) s 10(1)]. For example the court may make orders:

  • to transfer property from one partner to the other;
  • to sell property and divide the net proceeds between the partners in proportions decided by the court;
  • that one partner pay a lump sum of money to the other [Domestic Partners Property Act 1996 s 10(2)];
  • to set aside any transactions that have been entered into to avoid the division of property although a purchaser who innocently buys a property in good faith, paying a reasonable value, can keep it [Domestic Partners Property Act 1996 ss 14(1),15].

As far as practicable the court will attempt to finalise all matters to avoid further proceedings between the parties [Domestic Partners Property Act 1996 s 12]. However, the Act does not exclude other forms of remedy or relief [Domestic Partners Property Act 1996 s 16].

Where one of the partners dies, an application for the division of property may be made or continued by or against the legal personal representative of that partner [Domestic Partners Property Act 1996 s 9(4)]. This application may only relate to property that is undistributed at the date of the application.

At the conclusion of a court case the loser is often ordered to pay the winner's legal costs. Although the Domestic Partners Property Act 1996 (SA) does not specifically deal with the question of costs, the court may make orders for costs at the conclusion of a case.

    De facto relationships  :  Last Revised: Tue Feb 6th 2018
    The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.