De Facto Relationships Act 1991

The Act defines several key terms in s 3. A de facto partner is a person who is in a de facto relationship with another person. A de facto relationship is defined by s 3A: two persons (not married to each other) who have a marriage-like relationship. The court must consider all circumstances, including the duration of the relationship, the nature and extent of common residence, whether a sexual relationship exists, the degree of financial dependence or interdependence and arrangements for financial support, the ownership use and acquisition of property, the degree of mutual commitment to a shared life, the care and support of children, the performance of household duties, and the reputation and public aspects of the relationship (s 3A(2)). Subsection (3) expressly makes irrelevant the sex of the persons, whether either is married to someone else, and whether either is in another de facto relationship. This means that a person who is legally married to a third party can still be a de facto partner under the Act. For Aboriginal and Torres Strait Islander persons, s 3(2) expands the definition: a reference to a de facto partner includes a person to whom the person is married according to the customs and traditions of the particular community with which either person identifies, and a reference to a de facto relationship includes such a relationship.

Property is broadly defined in s 3(1) to include real and personal property, any estate or interest (present, future or contingent) in real or personal property, money, any debt or cause of action for damages, and any other chose in action or right with respect to property. Financial matters means maintenance of either or both partners, property of either or both, and financial resources of either or both. Financial resources includes a prospective claim or entitlement in respect of superannuation or retirement benefits, property under a discretionary trust that may become vested in or used for the partners, property whose alienation is under the partners’ control and is capable of being used, and any other valuable benefit (s 3).

Cohabitation agreement means an agreement (whenever entered into) between two adults, whether or not there are other parties, made in contemplation of their entering into a de facto relationship or during the existence of a de facto relationship, that makes provision with respect to financial matters (whether or not it also makes provision with respect to other matters) (s 3). Separation agreement means an agreement (whenever entered into) between two adults made in contemplation of terminating a de facto relationship or after terminating it, that makes provision with respect to financial matters (s 3). Both types of agreement are subject to the law of contract, but their effect in proceedings for adjustment of property or maintenance is limited: if the agreement is in writing and signed, the court must not make an order inconsistent with it (except as provided by ss 46 and 47); if not, the court may make any order it could have made if there were no agreement, but may have regard to its terms (s 45).

Child, in relation to de facto partners, means a child born as a result of sexual relations between the partners, a child of a female partner if her de facto partner is taken to be a parent under the Status of Children Act 1978 (NT), a child whose parentage is transferred to both de facto partners under a parentage order under the Surrogacy Act 2022 (NT), or a child adopted by the partners (s 3(1)). Periodic maintenance means maintenance payable by a weekly, fortnightly, monthly, yearly or other periodic amount (s 3). Married means validly married under the Marriage Act 1961 (Cth) (s 3). The Act also defines applicant to include a cross-applicant.

The Act directly affects de facto partners who live in the Northern Territory or who meet the territorial connection requirements in s 15 for property adjustment orders. Specifically, to obtain an order under Division 3, the court must be satisfied that one or both de facto partners lived in the Territory on the day the application was made, and that either both partners lived together in the Territory for at least one-third of the period of their de facto relationship, or the applicant made substantial contributions of the kind mentioned in s 18(1)(a) or (b) in the Territory (s 15). This means the Act primarily applies to relationships with a sufficient geographic nexus to the Northern Territory. Persons who are married to each other cannot be de facto partners because marriage is excluded by s 3A(1), but a married person can be a de facto partner with someone other than their spouse (s 3A(3)(b)). The Act also affects the legal personal representatives of deceased de facto partners: if a party to a property adjustment application dies before determination, the application may be continued by or against the estate (s 22); if a party dies after an order is made, the order may be enforced against the estate (s 23). However, for maintenance, s 29 expressly provides that an application cannot be continued if either party dies before determination, and s 30 provides that an existing order ceases on the death of either partner.

Children of de facto partners are relevant to the court’s jurisdiction: a child’s existence can overcome the two-year cohabitation requirement in s 16(2)(a). The care and control of a child under 18 is one of two grounds for a maintenance order (s 26(1)(a)). The definition of child in s 3 includes children born of the relationship, children where parentage is established under the Status of Children Act or Surrogacy Act, and adopted children. Third parties are affected in several ways: a person may apply for a declaration as to whether a de facto relationship exists between two other persons if their pecuniary interests or rights or obligations are affected (s 10(1)(b)). The court must have regard to the interests of a purchaser in good faith or other interested person when exercising powers under Divisions 3, 4 and 6, and may order that such persons be given notice or made a party (s 42). Transactions to defeat claims under s 41 can be set aside even if the disposition was made by a direction of or in the interest of a party, and the court may order costs against a party or a person acting in collusion. Cohabitation and separation agreements may bind the parties, but s 44(3) preserves the court’s power to make orders with respect to children (custody, access, maintenance) despite any agreement. The Act also affects persons claiming under a deceased partner’s estate: ss 48 and 49 provide that periodic maintenance provisions in an agreement are unenforceable against the estate unless the agreement otherwise provides, but lump sum and property provisions are enforceable against the estate except as otherwise provided.

The core right conferred by the Act is the right of a de facto partner to apply to a court for an order adjusting interests with respect to the property of the de facto partners or either of them (s 13(1)). This right is subject to the time limit in s 14: where the de facto relationship has ended, the application must be made within two years beginning the day after the relationship ended. Leave to apply after that period may be granted only if the court is satisfied that greater hardship would be caused to the applicant by refusing leave than to the other partner by granting it (s 14(2)). The court may make such order adjusting interests as it considers just and equitable, having regard to financial and non-financial contributions made directly or indirectly to the acquisition, conservation or improvement of property or financial resources, and contributions (including as homemaker or parent) to the welfare of the other partner or the family constituted by the partners and any child of the partners, child accepted into the household, or dependent person (s 18). The court has broad powers under s 37 to order transfer of property, sale and distribution of proceeds, execution of instruments, payment of lump sums or periodic amounts, securing payments, appointing trustees, and granting injunctions. There is also a right to seek a declaration of interests in property under s 12, which is binding on the partners but not other persons.

The right to maintenance is limited: s 24(1) states a de facto partner is liable to maintain the other only as provided by Division 5. An order for maintenance may be made only if the applicant is unable to support themselves adequately because of caring for a child of the partners or the other partner who is under 18, or because their earning capacity has been adversely affected by the circumstances of the relationship and an order would enable training or education (s 26(1)). The court must consider various factors including income, property, financial resources, physical and mental capacity for gainful employment, financial needs and obligations, eligibility for pensions/allowances (but disregarding income-tested entitlements), and responsibilities to support other persons (s 26(2)-(3)). Interim maintenance may be ordered where the applicant is in immediate need (s 27). Periodic maintenance orders for child-care grounds can last until the youngest child turns 18; for training/education grounds, the maximum is the shorter of three years after the order or four years after the partners last lived together (s 32). Orders can be discharged, suspended, revived or varied if circumstances change or cost of living changes (s 33). A court must discharge an order if the de facto relationship has ended and the recipient has entered into another de facto relationship (s 33(2A)). The right to apply for maintenance is lost if the applicant subsequently marries or enters into another de facto relationship (s 28).

A duty is imposed on the court in s 36: in proceedings for an order under Division 3 or 5, the court must, as far as is practicable, make orders that will finally determine the financial relationships between the de facto partners and avoid further proceedings. This reflects an overarching objective of finality. The court also has a duty under s 42(1) to have regard to the interests of a purchaser in good faith or other interested person when exercising its powers under Divisions 3, 4 and 6. Parties to the proceedings have the right to apply for orders setting aside transactions that defeat claims under s 41, and the court may set aside or restrain any instrument or disposition likely to defeat an existing or anticipated order, irrespective of intention. The Act also confers a right on de facto partners to enter into cohabitation or separation agreements (s 44), and such agreements are generally enforceable according to contract law, but the court has power to vary or set them aside if enforcement would lead to serious injustice or if circumstances make it impracticable to carry them out (s 46).

The Act does not create criminal offences or prescribe monetary penalties. Enforcement of orders and injunctions is addressed primarily through s 43, which provides that if a court having jurisdiction under Part 2 is satisfied that a person has knowingly and without reasonable cause contravened an order or injunction made under that Part, the court may order the person to give to the court any documents it thinks fit and make any other orders considered necessary to enforce compliance. Subsection (2) preserves any other power of the court to enforce its orders, including the power to punish for contempt. This means that wilful disobedience of a court order under the Act may be met with contempt proceedings, which can result in fines or imprisonment (though the Act itself does not specify penalties for contempt; that is a matter of general court power). Additionally, s 38 provides a mechanism for enforcing orders that require a person to execute an instrument: if the person refuses or neglects to comply, the court may appoint an officer or other person to execute the instrument in the name of the directed person, and that execution has the same force and validity as if executed by the person directed. The court may also make orders about the costs of preparation and execution of the instrument. Arrears of maintenance are recoverable as a debt; s 35 preserves the right to recover arrears due and payable at the time an order ceases to have effect under s 30 or 31. For example, if a maintenance order ceases because the recipient marries, any amounts that had accrued before the marriage remain recoverable. Similarly, if the order ceases because the recipient ceases to have care and control of the child, arrears accrued before that date are still recoverable. The Act also provides for recovery of amounts paid after cessation where the recipient failed to notify: s 30(3) states that if a recipient of periodic maintenance marries and fails to notify the payer, the payer may recover any amounts paid after the marriage as a debt due and payable by the previous de facto partner. Section 41 provides a powerful enforcement tool in relation to transactions to defeat claims: on an application for a property adjustment order, the court may set aside or restrain any instrument or disposition (including a sale or gift) that is likely to defeat an existing or anticipated order, irrespective of intention. The court may also order that property dealt with by such an instrument may be taken in execution or charged with payment of amounts under an order, and that proceeds of a sale be paid into court. The court may order costs against a party or a person acting in collusion with a party in relation to such transactions. Section 40 allows the court to vary or set aside orders under Division 3 or 5 in special cases: where there has been a miscarriage of justice because of fraud, duress, suppression of evidence, false evidence, or any other circumstance; where it has become impracticable to carry out the order; or where a person has defaulted and it is just and equitable to vary or set aside and make a substitute order. This is not a penalty but a remedial power. Finally, s 50 provides an indirect enforcement incentive: instruments made because of the breakdown of a de facto relationship are exempt from stamp duty if the Commissioner of Territory Revenue is satisfied, which can reduce the cost of implementing property transfers ordered or agreed.

Section 52 provides a general saving provision: nothing in the Act affects any right of a de facto partner to apply for any remedy or relief under any other Act or law. This means the Act is not exhaustive; de facto partners retain common law and equitable rights (such as resulting trust, constructive trust, or unconscionable conduct claims) and rights under other statutes. The Act specifically interacts with federal family law. Section 20 allows a court to adjourn an application under Division 3 if proceedings in relation to the property of the de facto partners or either of them are commenced in the Family Court of Australia before a final order is made. If the Family Court proceedings are delayed, either party may apply for the adjourned hearing to proceed. This contemplates potential overlap with the Family Law Act 1975 (Cth), which also deals with property and maintenance for de facto partners (under Part VIIIAB). However, the Act does not oust federal jurisdiction; it simply allows the Territory court to adjourn. The definition of child in s 3 incorporates the Status of Children Act 1978 (NT) (specifically ss 5D and 5DA regarding parentage of children born through assisted conception) and the Surrogacy Act 2022 (NT) (parentage orders). This means the Act’s property and maintenance provisions apply to those children as if they were children of the de facto partners. The maintenance provision in s 26(3) requires the court to disregard any entitlement of the applicant or a child in their care to an “income tested pension, allowance or benefit as defined in the Family Law Act 1975 (Cth)”. This prevents double-counting of social security. Section 3(2) brings within the Act marriages according to Aboriginal and Torres Strait Islander customs and traditions. This interacts with the common law recognition of such marriages and with the definition of married in s 3 (which refers only to the Marriage Act 1961 (Cth)). Thus, a customary marriage is not a “marriage” for the purpose of excluding a de facto relationship under s 3A(1); instead, it constitutes a de facto relationship. The Act also interacts with the law of contract: cohabitation and separation agreements are subject to and enforceable in accordance with the law of contract, except as otherwise provided by Part 3 (s 44(2)). The court may, however, vary or set aside such agreements under s 46 on grounds similar to frustration or serious injustice, overriding contract law. Section 44(3) preserves the court’s power to make orders about children despite any such agreement, which reflects the paramountcy of child welfare under child protection and family law. Section 50 interacts with the stamp duty laws of the NT: instruments made because of the breakdown of a de facto relationship are exempt from stamp duty to the extent they convey property between the partners, if the Commissioner is satisfied. This mirrors stamp duty relief available for married couples and is intended to avoid a tax barrier to property settlements. The Act also interacts with the Local Court Act 2015 (NT) and the Supreme Court Act by defining the jurisdictional limit for the Local Court: s 5 limits the Local Court’s jurisdiction to property of a value not exceeding the jurisdictional limit defined in s 3 of the Local Court Act 2015, unless the parties consent in writing. If proceedings are instituted in the Local Court for property exceeding that limit, the court must transfer to the Supreme Court unless parties consent (s 6). There is also a general power of transfer between courts in the interests of justice (s 7), and courts must act in aid of each other (s 9). Finally, the Act does not interact with the criminal law except through the general law of contempt.

The De Facto Relationships Act 1991 (Act No. 38 of 1991) received assent on 28 September 1991 and commenced on 1 October 1991 (s 2). It has been amended by several subsequent Acts. The Law Reform (Gender, Sexuality and De Facto Relationships) Act 2003 (Act No. 1 of 2004) received assent on 7 January 2004 and commenced on 17 March 2004. This amending Act inserted s 3A (de facto relationships) and made consequential amendments to ss 3, 33, 44, and 51 (the latter was repealed by the same Act). The repeal of s 51 is noted in the endnotes. The 2003 amendments removed gender-specific language and ensured the Act applied equally to same-sex and opposite-sex relationships. The Revenue Law Reform (Budget Initiatives) Act 2008 (Act No. 23 of 2008) amended s 50 (exemption from stamp duty) on 1 July 2008 (with some parts commencing earlier on 1 January 2008 and 6 May 2008). The Statute Law Revision Act 2011 (Act No. 30 of 2011) made extensive formal amendments: it amended the heading of Part 1, s 3, ss 5-10, ss 15-16, ss 18-19, ss 24-27, s 30, s 32, ss 33-34, ss 36-43, ss 44-49, the heading of Part 4, and s 50. These amendments were largely renumbering and updating references following the enactment of the Local Court Act 2015 (which replaced the Local Court with the Local Court and the Local Court Act). The endnotes indicate that general amendments of a formal nature were also made by the Interpretation Legislation Amendment Act 2018 (Act No. 22 of 2018) to ss 1, 3, 5 and 6, though these are not separately listed in the table of amendments. The most recent amendment was by the Surrogacy Act 2022 (Act No. 8 of 2022), which received assent on 26 May 2022 and commenced on 20 December 2022. This amended s 3(1) to insert a new paragraph (ba) in the definition of child, adding a child whose parentage is transferred to both de facto partners under a parentage order made under the Surrogacy Act 2022. The endnotes also list saving and transitional provisions from the 2003 amendments (s 35 of the Law Reform (Gender, Sexuality and De Facto Relationships) Act 2003). No other transitional provisions are noted. The Act has thus been updated to reflect changes in social policy (gender equality and same-sex recognition) and to coordinate with newer legislation on surrogacy and court structures.

The Act itself does not cite any cases. No litigation history is provided in the source text. Accordingly, it is not possible to derive any case law from the legislation as presented. A reader should be aware that, as a statute in force since 1991, there is likely relevant Northern Territory case law interpreting its provisions, but the source does not include any such references. The Act contains internal mechanisms for resolving disputes, such as declarations (s 10) and annulment of declarations (s 11), but these are judicial remedies, not reported litigation. The provisions on transfer between courts (ss 6-8) imply there may have been practical issues of jurisdiction, but no specific decisions are recorded in the text. The absence of cited litigation in the source means this deep dive cannot discuss specific judgements or judicial interpretations. Practitioners should conduct their own case law research on the NT Supreme Court and Local Court decisions, as well as the High Court on appeal, to understand how the Act has been applied. Notably, the Act’s maintenance provisions are highly circumscribed, and it is possible that litigation has tested the limits of “serious injustice” for setting aside agreements (s 46) or the “significant change in financial circumstances” for adjourning property proceedings (s 19). Similarly, the definition of de facto relationship in s 3A may have been litigated to clarify what constitutes a “marriage-like relationship”. The Act also interacts with the Family Law Act 1975 (Cth) in cases where de facto partners also have proceedings in the Family Court, and there may be questions about when a Northern Territory court should adjourn under s 20. None of this is reflected in the source. Therefore, this section must state that the Act provides no litigation history.

Several provisions in the Act can trap unwary practitioners or parties. Time limit for property applications: Under s 14(1), an application for adjustment of property must be made within two years starting the day after the de facto relationship ends. Leave to apply out of time under s 14(2) requires the court to be satisfied that greater hardship would be caused to the applicant by refusing leave than to the other partner by granting it. This is a high threshold; delay can be fatal. Territorial connection: Under s 15, the court cannot make a property adjustment order unless one or both partners lived in the Territory on the application date, and either both lived together in the Territory for at least one-third of the relationship, or the applicant made substantial contributions of the kind in s 18 in the Territory. If the relationship was largely lived elsewhere, the NT Act may not apply. Two-year cohabitation requirement: Section 16(1) requires a minimum of two years’ cohabitation unless one of the exceptions in s 16(2) applies (a child of the partners, or substantial contributions by the applicant that would otherwise not be adequately compensated and serious injustice). The exception is not automatic; the court must be satisfied of serious injustice. Maintenance is limited: Section 24 abolishes any general right to maintenance. The only grounds are child care (child under 18) or adverse effect on earning capacity that can be remedied by training/education (s 26). Even then, eligibility for income-tested pensions is disregarded (s 26(3)). Subsequent marriage or de facto relationship bars maintenance: Section 28 provides that a partner who has subsequently married or entered into another de facto relationship cannot apply for maintenance against the previous partner. Section 33(2A) requires the court to discharge an existing periodic maintenance order if the recipient enters a new de facto relationship. Failure to notify the payer of a new marriage (s 30(2)-(3)) can result in the payer recovering amounts paid after marriage as a debt. Death ends maintenance: Section 29 provides that an application for maintenance cannot be continued if either party dies. An existing order ceases on death of either partner (s 30(1)(a)). By contrast, property adjustment applications and orders survive death: s 22 allows the application to be continued by or against the estate, and s 23 allows enforcement against the estate. Agreements in writing and signed are binding but not absolute: Under s 45(2), if the court is satisfied there is a cohabitation or separation agreement in writing and signed by the other partner, the court must not make an order inconsistent with it (except as per ss 46 and 47). But if the agreement is not in writing and signed, the court may disregard it entirely (s 45(3)). Oral agreements have no binding effect. Even written signed agreements can be varied or set aside if enforcement would lead to serious injustice or impracticability (s 46). Transactions to defeat claims: Section 41 allows the court to set aside any instrument or disposition that is likely to defeat an existing or anticipated property adjustment order, irrespective of intention. This is broader than a mere anti-avoidance provision; it applies even if the person had no intention to defeat a claim. The court may also order a party or a person acting in collusion to pay the costs of the other party or a purchaser in good faith. Stamp duty exemption requires Commissioner satisfaction: Section 50 exempts instruments from stamp duty only to the extent the Commissioner of Territory Revenue is satisfied the instrument is made because of the breakdown of the de facto relationship. The exemption is not automatic. Declaration of de facto relationship is conclusive: A declaration under s 10(3) that a de facto relationship exists or existed is conclusive for all purposes while in force (s 10(6)). This can have implications beyond property, such as for social security, immigration, or other legal contexts. Annulment under s 11 is possible only on the ground of new facts that could not have been disclosed with reasonable diligence. Child definition: The definition of child in s 3 includes children born of sexual relations and those where parentage is established under the Status of Children Act or Surrogacy Act. But it does not automatically include step-children unless they are “a child accepted by the partners or either of them into the household of the partners” (s 18(1)(b)(ii) uses that language for contributions). Practitioners must check whether a child is a “child of the partners” for the purposes of the two-year exception or maintenance grounds. No right to apply for maintenance if in a new de facto relationship: This applies regardless of whether the new relationship is itself a de facto relationship under the Act, and even if it later ends (s 28). Costs: The Act does not contain a specific costs provision; the general power of courts to award costs likely applies, but s 41(3) specifically allows costs against a party or colluding person in relation to transactions to defeat claims. Interim maintenance: Under s 27, interim maintenance can be ordered if the applicant is in immediate need, but only until the application is determined. There is no provision for backdating beyond the application date. Extension of periodic maintenance: Under s 34, an order can be extended only up to the maximum period in s 32. If the order was made for less than the maximum, the recipient must apply before that maximum ends. The court must be satisfied of justifying circumstances. Avoid relying on the Act for any form of spousal maintenance akin to marriage; the scheme is deliberately restrictive.

Compliance with the De Facto Relationships Act 1991 will vary depending on whether the parties are currently in a relationship, are separating, or have already separated. The following steps are based on the Act’s requirements. For parties in an existing de facto relationship: Consider entering into a cohabitation agreement under s 44. To ensure it is binding on application for property adjustment or maintenance, the agreement must be in writing and signed by both partners (s 45(2)). The agreement can cover financial matters such as property division, maintenance, and financial resources. It should be drafted with careful attention to the circumstances of the relationship, and each party should seek independent legal advice to reduce the risk of the agreement being set aside for serious injustice under s 46. Keep records of contributions: financial and non-financial contributions to property acquisitions, conservation or improvement, and contributions as homemaker or parent (s 18). These records will be crucial if an application for adjustment of interests is later made. Also document the factors listed in s 3A(2) to establish the existence and duration of the de facto relationship, especially if there is any ambiguity (e.g., where one person is married to another). On separation: Immediately note the date on which the de facto relationship ends. This triggers the two-year time limit for property adjustment applications (s 14(1)) and the two-year limit for maintenance applications (s 25 applying s 14). File an application under s 13 for adjustment of property within two years, or seek leave under s 14(2) only if you can demonstrate greater hardship to the applicant than to the respondent. Before filing, ensure the territorial connection in s 15 is satisfied: at least one partner must live in the NT on the application day, and either both partners lived together in the NT for at least one-third of the relationship, or substantial contributions were made in the NT. If the relationship was less than two years, check whether an exception applies under s 16(2): is there a child of the partners? Or did the applicant make substantial contributions that would otherwise not be compensated, and would failure to make an order result in serious injustice? If maintenance is sought, assess whether the applicant falls within s 26(1): caring for a child under 18 of the partners or the other partner, or earning capacity adversely affected by the relationship such that training/education would improve it. Note that s 28 bars the application if the applicant has subsequently married or entered another de facto relationship. If the applicant is in immediate need, apply for interim maintenance under s 27. Comply with disclosure obligations: provide full information about property, financial resources, and contributions. The court has broad powers under s 37, so a party should anticipate orders for transfer, sale, lump sum payment, or periodic amounts. If the parties reach a settlement, it is prudent to formalise it as a consent order (s 37(k)) or as a separation agreement in writing and signed (s 44). A consent order is enforceable under s 43. If a party dies: For property proceedings, the legal personal representative should be substituted as a party (s 22). For maintenance proceedings, the application abates (s 29). If a maintenance order is in place, the estate must stop payments on death (s 30(1)(a)), but arrears up to that date are recoverable (s 35). To avoid transactions being set aside: Do not dispose of property when a claim is anticipated. Section 41 applies regardless of intention. If a disposition is necessary, seek court approval or ensure it is structured transparently. For stamp duty: If property is transferred because of relationship breakdown, apply to the Commissioner of Territory Revenue for exemption under s 50. The instrument must be for the conveyance of property of the partners to either or both, and the Commissioner must be satisfied it is because of the breakdown. For agreements: Review any existing cohabitation or separation agreement. If a party believes the agreement is unfair, consider applying to the court under s 46 to vary or set it aside, but note the high threshold of serious injustice or impracticability. Also check whether the agreement has been revoked by conduct (s 47). Enforcement: If a court order is made, ensure compliance. If the other party fails to comply, apply to the court under s 43 for enforcement. If a party receives a maintenance order and later marries or enters a new de facto relationship, they must notify the payer immediately (s 30(2)) to avoid liability for repayment. General: Seek legal advice specific to the NT Act, as the federal Family Law Act also may apply to de facto partners (if they meet certain criteria). The two Acts can interact, and the NT Act allows adjournment if Family Court proceedings are commenced (s 20). Keep all documentation: agreements, records of cohabitation, financial contributions, and any correspondence. The court has power under s 36 to end the financial relationship finally; cooperate in that process.