Family law matters can be slightly more complicated for de facto partners than spouses. While a married couple has a marriage certificate, de facto couples often have to prove their relationship status to Centrelink. Many clients assume that Centrelink uses the same test as the Family Law Act to determine if a de facto relationship existed. However, there are differences which can catch some people out. This difference can impact certain issues post-separation.
Key Takeaways
How Centrelink assesses a de facto relationship
Centrelink has an interest in defining the nature of your relationship. Your status can affect the government payments you may be entitled to, as your partner’s income and assets may be relevant to your eligibility. Financial support available from Centrelink includes:
A de facto relationship has to meet all of the following criteria:
The relationship is marriage-like.
You’re not legally married or in a registered relationship.
You’re above the age of consent in the Australian state or territory.
You’re not in a prohibited relationship.
Centrelink uses a ‘member of a couple’ model set down in Section 4 of the Social Security Act 1991. This model contains five factors determine whether you and your de facto partner are living on a genuine domestic basis, rather than relying on one factor alone. This includes:
Whether there’s a sexual relationship.
How much of a mutual commitment there is to a shared life.
The financial and social aspects of the relationship, such as joint bank accounts, joint assets, living arrangements, joint decisions, and how you present the relationship publicly.
The nature of the household.
The existence of a sexual relationship is relevant but not decisive, and public recognition can also help confirm the relationship.
Crucially, Centrelink’s approach isn’t generally concerned with how long the relationship has existed. Even if you’ve only been together for a matter of weeks, your relationship may still be considered de facto. Any change in your relationship status should be reported to Centrelink within 14 days.
Not all states allow registration, but you can register a de facto relationship in five states. Registration is not available in the Northern Territory or Western Australia.
Both partners must be at least 18 to register, and the application usually requires a statutory declaration and a fee you pay in the relevant state.
How this differs from family law
Family law determines de facto relationships with the legal criteria in Section 4AA of the Family Law Act, rather than Section 4 of the Social Security Act. However, the two sections contain similar factors, and family law also asks whether a relationship was marriage-like rather than requiring marriages.
The main difference between Centrelink and the Federal Circuit and Family Court of Australia’s (FCFCOA) approach is the importance of relationship length. Under Section 90SB, the FCFCOA only has the jurisdiction to make a property or maintenance order for a de facto couple if the parties have been together for at least two years. A de facto partner can seek similar property rights to a married couple and, where children are involved, similar parental rights. If separation involves children, the court may also need to consider parenting arrangements. Exceptions to this requirement are the following:
There are children of the relationship.
The applicant made substantial contributions under Section 90SM.
Not making an order would be a serious injustice to the applicant.
You have a registered domestic relationship under the prescribed law of a state or territory, as a prescribed kind of relationship under that law in the relevant state or territory, and registration does not always require living under the same roof.
Why the two can give different answers
You may find yourself in a position where Centrelink has assessed you as part of a de facto relationship, while the FCFCOA hasn’t. The reason the difference exists is that Centrelink and the FCFCOA have different aims and are governed by separate legislation, and Centrelink may also confirm a de facto relationship for social security purposes even where the family law threshold for court action is not met.
Centrelink is concerned with a party’s current financial circumstances and how they affect your access to government benefits. This affects what you may be paid because Centrelink looks at the other partner’s income and assets as well. Your partner’s finances may affect you from the very beginning of the relationship. To account for this, Centrelink factors in your relationship as soon as it meets the relevant criteria.
The FCFCOA manages your legal rights during a property proceeding. Importantly, the 2-year requirement doesn’t determine if the relationship is valid. It determines whether the Federal Circuit and Family Court of Australia has the authority to make property or maintenance orders after the relationship breakdown. After separation, you may need to make a claim for property settlement or financial support, and a time limit will usually apply. If domestic violence is involved, or there are urgent issues with an ex partner and children, legal advice should be sought quickly.
Get legal advice after a de facto relationship ends
Understanding how your relationship status may be assessed under Australian law is important to protect your rights. If you’re seeking a property settlement but are unsure about your entitlements, contact a family lawyer.
Andrews Family Lawyers has over a decade of experience supporting clients with their property matters. Contact us for a free consultation.
