Until 1 March 2009 de facto relationships in all States and Territories except Western Australia were governed by the relevant State or Territory legislation. That State and Territory legislation still applies to couples who do not meet the jurisdictional basis of the Family Law Act 1975 (Cth) (FLA) but now is applied primarily in respect of a division of property on separation rather than children.

De facto relationships in all States and Territories except Western Australia that ceased to exist prior to 1 March 2009 (or 1 July 2010 in the case of South Australia) continue to be dealt with in the District Court or Supreme Court of each State and Territory under the legislation applicable in that jurisdiction:

• • New South Wales — Property (Relationships) Act 1984 (NSW);
• • ACT — Domestic Relationships Act 1994 (ACT) ;
• • Northern Territory — De Facto Relationships Act 1991 (NT);
• • Queensland — Property Law Act 1974 (Qld) ;
• • Victoria — Relationships Act 2008 (Vic);
• • Tasmania — Relationships Act 2003 (Tas);
• • Western Australia — Family Court Act 1997 (WA) or if no jurisdiction then the Property Law Act 1969 (WA);
• • South Australia — Domestic Partners Property Act 1996 (SA).

See De facto law — state based.

De facto relationships under the Family Law Act 1975 (Cth)

In broad terms, a de facto couple in any State or Territory except for Western Australia may apply to the Family Court of Australia or Federal Circuit Court of Australia (or such other relevant state court having jurisdiction for family law matters) for their property matters to be dealt with under the Family Law Act 1975 (Cth) provided:

• • they are two adult persons of either gender;
• • who live together on a genuine domestic basis;
• • they are not family (that is, they are not related);
• • their relationship is of at least two years duration in total; and
• • at least one third of their relationship has been spent in a relevant referring jurisdiction.

Where a couple is in dispute over the living or care arrangements of a child of the de facto relationship, the Family Law Act 1975 (Cth) applies irrespective of the length of the relationship.

Parties in referring states in a de facto relationships who separated after 1 March 2009 are now dealt with in the Family Court of Australia under the Family Law Act 1975. The referring states are NSW, Victoria, Queensland, Tasmania, South Australia and the ACT while Western Australia has retained its own legislation which applies to de facto couples. Married couples in Western Australia are dealt with under the Family Law Act 1975 (Cth). The Family Court Act 1997 (WA) mirrors the substantive provisions of the Family Law Act in any event.

There are a range of factors, not just a period of cohabitation, which must be considered to determine whether or not a couple comes within the legal definition of de facto. Once it is established that a de facto relationships exists for the purpose of either the Family Law Act 1975 (Cth) (or Family Court Act 1997 ( WA), consideration must then be given to the “gateway requirements”, as not all de facto relationships are caught by the provisions of the Family Law Act 1975 (Cth) (or in WA the Family Court Act 1997). There must be a territorial connection to the relevant jurisdiction, or a recognised exception to the normal gateway requirements.

Note that a “de facto relationship” includes both heterosexual and same-sex relationships.

See De facto law under the Family Law Act.

Cohabitation

Before parties can be said to be in a de facto relationship for the purposes of the Family Law Act or for state-based legislation, they must be "cohabitating".

It is also important to note the separation date, as the provisions of the Family Law Act relating to de facto property and financial settlements relate to parties who separate on or after 1 March 2009. (or 1 July 2010 in the case of South Australia).

See Cohabitation.

De facto law — state based

In the event that the relationship does not satisfy the “gateway” or other requirements of the Family Law Act, then the law applicable to that relationship will be state or territory based.

For a consideration of the state and territory based laws relating to de facto relationships not covered by the Family Law Act, see De facto law — state based.