Married vs de facto in Australia: what’s the legal difference?

When you move in with your partner, legal rights are probably the last thing on your mind. Few people sign a lease, unpack the boxes and think, ‘What does this mean legally?’ Yet moving in with your partner can have important legal consequences, particularly if your relationship is considered de facto. 

That’s because de facto and married couples are treated more alike in Australia than most people realise. This is particularly true when the relationship ends, with de facto couples having many of the same rights and responsibilities as married couples when it comes to matters like property settlement and financial support.

This wasn’t always the case in Australia, and these protections have expanded significantly over time. Major reforms to the Family Law Act in 2009 brought de facto couples under the federal family law system, giving them access to many of the same legal protections available to married couples. 

It was a timely change because since 2011 the number of Australians in de facto relationships rose by a massive 46.8%. So, if you’re considering moving in with your partner, are already in a de facto relationship or are in the process of separating, it’s worth understanding what that means for you legally. 

In this article, we’ll look at marriage versus de facto relationships in Australia, where the law treats them similarly and where important differences remain.

De facto vs common law – does common law marriage exist in Australia?

You might hear the term ‘common-law marriage’ or even ‘non-ceremonial marriage’ in reference to a couple living together who haven’t officially married. While this term is used in some parts of the world, in Australia the legal concept is actually known as a ‘de facto relationship’. Whether your relationship qualifies as de facto will depend on your individual circumstances. 

What’s a de facto relationship?

Section 4AA of the Family Law Act 1975 defines a de facto relationship as a couple who aren’t legally married, aren’t related by family and have a relationship as a couple living together on a ‘genuine domestic basis’.

Of course, relationships come in all shapes and sizes, and there’s no single test for determining whether a couple is living together on a genuine domestic basis. Instead, the courts can look at a range of circumstances to understand the true nature of your relationship. 

Some of these could include:

• The duration of the relationship
• Whether a sexual relationship exists
• The degree of financial dependence or interdependence
• The care and support of any children
• How your relationship is presented publicly

No single factor will necessarily determine the outcome, and not every factor needs to apply for a relationship to be considered de facto. De facto relationships can be between opposite or same sex couples and can even exist if one of the partners is legally married to another person. Ultimately, the courts will look at your relationship as a whole when deciding whether you meet the legal definition of de facto.

When does a relationship become de facto?

If you’re living with your partner, you may be wondering when the relationship becomes de facto.

The general rule of thumb is about two years of living together. But it can be less if you share a child, one party has made significant financial contributions to the relationship, or the relationship is/was registered under a prescribed law of a state or territory.

The Federal Circuit and Family Court of Australia considers these ‘gateway criteria’. In simple terms, they help determine whether the Court has the power to deal with your financial dispute after your de facto relationship ends.

What’s the difference between a de facto relationship and a marriage?

The most obvious difference between a de facto relationship and a marriage is the legal ceremony. While the perception may be that a couple is locked into a marriage vs the freedom of a de facto relationship, is this actually the case?

Australians have certainly been pulling away from the institution of marriage in recent years, according to the Australian Relationships Report. This decline in traditional marriage has also coincided with a rise in de facto relationships. 

Let’s take a closer look at how a marriage and a de facto relationship differ.

Table: Comparison of marriage vs de facto relationship

Do de facto couples have the same legal rights and responsibilities as married couples?

Yes and no.

As mentioned above, the 2009 Family Law Act reforms granted de facto couples broadly the same rights as married couples. This applies to property division, superannuation splitting and spousal maintenance, depending on the circumstances. Child support also applies regardless of whether parents are/were married or de facto.

But of course, some differences do remain between the two. For example, proving the existence of a marriage is far simpler than proving a de facto relationship exists. 

Differences are also evident when living or working overseas. Having your relationship recognised in a foreign country isn’t automatic for de facto couples like it typically is for married couples.  

What happens to property if you separate?

Typically, after a married couple divorces, they’ll go through the property settlement process. This sees all assets and liabilities added to a shared property pool, various factors such as future needs and financial and non-financial contributions considered, and the pool divided equitably. Assets can include bank accounts, cash, real estate and superannuation.

Since the 2009 reforms, de facto couples can now also use the property settlement process.

The key difference between the two is the time limit that applies. Married couples generally have 12 months after a divorce becomes final to apply for property settlement. De facto couples, on the other hand, have two years after the separation.

Can you protect your assets?

Yes, and one of the best ways to proactively protect your assets in a relationship is through a Binding Financial Agreement (BFA). This is also known as a prenuptial agreement or prenup. 

A BFA is a legally binding contract that can be used by both married and de facto couples. It can be created early in a relationship, when moving in together, before marriage, during marriage or even after a marriage ends. It essentially lays out how a couple’s assets, finances and liabilities will be handled if the relationship comes to an end. 

It’s also a great way to protect your assets, particularly if you’re entering into a relationship with significant assets, you own a business, have received an inheritance or simply want to establish what will happen to the property you bring into the relationship.

Importantly, you don’t need to be planning a wedding to put these protections in place. A BFA can give all couples – but particularly de facto couples – certainty and confidence about what will happen to their property and assets if they happen to separate later.

There are strict legal requirements for creating a valid BFA, including requirements around independent legal advice. So, if protecting particular assets is important to you, it’s worth speaking to a family lawyer about your options before combining finances or making major financial decisions together.

Will you be entitled to spousal maintenance or child support?

Spousal maintenance and child support are generally treated the same whether the couple was married or de facto.

If you’re unable to adequately support yourself after separation, you may be able to apply for spousal maintenance from your former partner. Whether maintenance is payable, and how much, will depend on factors such as your financial needs and your former partner’s capacity to provide support.

Child support is also based on the needs and circumstances of the child and their parents, rather than whether the parents were ever married. Both parents can have financial responsibilities towards their children following separation.

So, when it comes to these forms of financial support, being in a de facto relationship rather than a marriage generally won’t prevent you from seeking assistance you may otherwise be entitled to.

Some surprising legal realities

Myths and misconceptions abound when it comes to family law. Here are some interesting facts you may not know – or may not have believed – about Australia’s legal framework.

• Public perception matters – a long-term relationship that was kept secret may not be considered de facto by the courts because the couple didn’t present themselves publicly as a couple.
• When a couple stops living together, this doesn’t automatically mark the end of a de facto relationship in the eyes of the law.
• It’s legally possible to be married to one person and in a de facto relationship with another at the same time.
• The sexual side of a relationship could be discussed in a courtroom, as this is one of many factors that can contribute to two people being considered a couple. 
• Married couples must wait 12 months after separation before they can apply for a divorce. In comparison, a de facto relationship is considered finished as soon as the couple separates.

How common are de facto relationships in Australia?

The 2021 ABS Census (the latest data available) found there were 2,168,351 people in de facto relationships in Australia that year. The Australian Relationships Report observed this was an increase from 1,751,731 in 2016 and 1,476,368 in 2011. 

People in a de facto relationship comprised 11.5% of the country’s over-15 population in 2021 – a figure that is likely to have risen in subsequent years. State by state, NSW had more de facto partners than any other in the country, but as a percentage of its population, it ranked the lowest. In terms of capital cities, Darwin had the highest proportion of its population at 16%.

It’s important to remember that measuring the number of de facto relationships isn’t as straightforward as looking at the marriage register. Because many de facto relationships go unregistered, we rely on ABS Census data every five years when gathering data. The next census is happening in August 2026, with new data being released in June 2027.

Not sure where you stand? Talk to our team

Every relationship is different, and sometimes the details can make a big difference to your legal position. Getting the right advice early can help you understand your options and make informed decisions about what comes next.

Our family lawyers are here to help. Contact our team today for a confidential chat, or download your free copy of our Australian Relationships Report to discover more about how Australians are partnering up.