Do you live with your significant other? Have you acquired any property together? Are you financially dependent on one another? ‍While marriage might not be on the cards for the two of you, you may already be in a "de facto relationship" in the eyes of the Property (Relationships) Act 1976 (the PRA). It is important to know whether or not you are in a qualifying de facto relationship, as your property may be vulnerable to a relationship property claim if you and your partner separate.

The presumption of equal sharing under the PRA starts once you have been in a de facto relationship for three years. A de facto relationship is defined in the PRA as a relationship between two people, regardless of their gender or sexual orientation, who are both 18 years or older, who live together as a couple, and who are not married to, or in a civil union with, one another. However when a de facto relationship actually begins is not as black and white as the law suggests. Financial reasons, jobs in separate cities, and other commitments may keep couples from living together but still be in a de facto relationship.

Criteria for a de facto relationship

If there is a dispute over when you and your partner began your de facto relationship, the following factors will be used to assess whether or not you are in a qualifying relationship:

• The duration of the relationship – it must be more than 3 years unless you are in a qualifying relationship of short duration.
• The nature and extent of common residence - the shared living arrangements you have with your partner. You can live in separate residences but still be in a de facto relationship.
• Whether or not a sexual relationship exists – however a sexual element is not necessary to establish a de facto relationship.
• The degree of financial independence or interdependence, and any arrangements for financial support, between the parties - couples who do not live together and maintain complete financial independence are unlikely to be in a de facto relationship.
• The ownership, use, and acquisition of property - the acquisition of any relationship property suggests the existence of a de facto relationship.
• The degree of mutual commitment to a shared life – the extent to which a couple is committed to one another. Evidence of this will come from a global analysis of all relevant factors.
• The care and support of children – they need not be a child of the relationship.
• The performance of household duties – the domestic arrangements you have with your partner which suggest dependence on one another.
• The reputation and public aspects of the relationship – how you and your partner outwardly present your relationship to family, friends, and more widely, the outside world.

Any combination of these factors may be relevant and present. The Court is entitled to attribute whatever weight to the factors it thinks is appropriate in the particular circumstances of the case.

Relationships of less than three years

The PRA may also apply to you even if you have been in a de facto relationship for less than three years, provided that either you and your partner have a child together, or one of you has made a substantial contribution to the relationship. The Court would also need to be satisfied there would be serious injustice if it did not make an order. If you are in a relationship of a short duration within the meaning in the PRA then any property would be divided in accordance with the respective contributions made to the relationship.

What if I am in a polyamorous de facto relationship?

In 2023 the Supreme Court held that while a 'triad' or triangular relationship does not meet the definition of a de facto relationship under the PRA, it may be subdivided into a series of qualifying de facto relationships. A triangular relationship may consist of two or more qualifying relationships to which the PRA applies and orders for relationship property can be made.

How can I protect myself?

If you are in a de facto relationship or you are thinking about entering into a de facto relationship, the best way to protect your property from a PRA claim is have a Section 21 Contracting Out Agreement (colloquially known as a "pre-nup") prepared. If you are interested in entering into a Contracting Out Agreement, or are in the event of separating from a de facto relationship, please contact:

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