Australian couples relocating to England: what you need to know
Australian couples relocating to England: what you need to know
For Australian de facto couples planning a move to England, relocation advice often overlooks the family law dimension, and the financial consequences can be significant. The statutory protections that apply to de facto couples in Australia do not exist in England. If your relationship breaks down after you relocate, the legal landscape you find yourself in may be fundamentally different from the one you left behind, and navigating it will require careful thought about which jurisdiction applies to your situation.
The Australian position
Australia provides one of the most comprehensive legal frameworks in the world for de facto couples. Under the Family Law Act 1975 (Cth), de facto partners who satisfy the geographical connection to a participating Australian jurisdiction can apply to the court for property settlement and spousal maintenance on the same basis as married couples, provided at least one of the following gateways is met: the relationship lasted at least two years; there is a child of the relationship; the relationship is registered under a prescribed State or Territory law; or substantial contributions were made such that a failure to make an order would result in serious injustice. The court works through a four-step process that considers the contributions (financial, non-financial, at home and/or caring for children) of each party and their current and future circumstances, including, where relevant, the economic impact of family violence, housing needs for any children, and the effect of any wastage or liabilities.
The practical effect is significant. A partner who has reduced their working hours or stepped back from their career to care for children, or who has made substantial non-financial contributions to the relationship, is entitled to have those contributions recognised in any property settlement. Spousal maintenance is also available where one party cannot adequately support themselves and the other has the capacity to pay.
It is natural, given how deeply embedded this framework is in Australian law and cultural expectations, to assume it will simply follow you when you move abroad. The reality is quite different.
The English position
The jurisdiction of England and Wales has no equivalent statutory regime for cohabitants. There is no such thing as a common law marriage under English law, a myth that surveys suggest a significant proportion of cohabiting couples in England still believe in, and one I encounter regularly in practice. Regardless of how long a couple has lived together, or whether they have children, an unmarried partner in England has no right to claim a property adjustment or spousal maintenance from their partner on separation.
The available remedies in England for unmarried couples are piecemeal and structurally very different from the Australian system. Remedies include:
Trust law claims under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA)
These allow a cohabitant to ask a court to recognise their share in a property, but the starting point is always the legal title and any written agreement about ownership. Where there is no such agreement, a claim may be possible based on a shared understanding between the parties that both would own the property, provided the person claiming can show they acted on that understanding to their detriment. Where a formal deed or declaration of trust is already in place, overturning it is very difficult and generally requires proof of fraud or mistake. Unlike in Australian family law proceedings, or indeed English divorce proceedings, the court has no broad power to adjust property interests based on what is fair. These claims are legally complex, turn heavily on the specific facts, and the outcome can be difficult to predict.
Limited financial provision for children under Schedule 1 of the Children Act 1989
These claims arise only where there are children of the relationship. These orders are for the benefit of the child, not the parent, and any settled property typically reverts to the paying party when the child reaches 18 or completes full-time education. This is structurally very different from a property settlement between the parties and claims under this statute are generally only achievable where there is significant wealth.
Contractual cohabitation agreements
These are generally enforceable as contracts but do not confer the broad statutory rights that flow from marriage or the Australian de facto regime.
Regardless of how the parties have structured their relationship, a partner who has focused on homemaking or caring for children rather than paid employment, and who in Australia would be entitled to a share of the asset pool and potentially maintenance, may find themselves with no family law claims at all once the couple is living in England. The forum in which any dispute is resolved can therefore have a significant bearing on the outcome for both parties, which is why early advice on jurisdiction is essential regardless of which side of the equation you are on.
Is reform coming in England?
There is a consultation on cohabitation law reform due in England in Spring 2026, and it is welcome. Legislation has arguably not kept pace with societal change: according to ONS data, more than half of all babies in England and Wales are now born to unmarried parents, and cohabitation is the fastest-growing family type in the UK. The Government has confirmed it will take a broad approach, looking at cohabitation rights alongside financial remedies on divorce. But even if the consultation produces meaningful proposals, any legislative reform is likely to be years away. The current law remains unchanged for now.
Before you go: the importance of timing
If you live in Australia, believe you are in a de facto relationship, and are planning to relocate to England, now is the time to take family law advice.
Under section 90UA of the Family Law Act, a de facto financial agreement can only be entered into if the parties are ordinarily resident in a participating Australian jurisdiction at the time of signing. Once a couple relocates to England, that option disappears. They cannot sign a valid de facto BFA from abroad, and England offers no equivalent mechanism for unmarried couples.
This matters because the ability to make a de facto BFA under section 90UA is not the same as the court’s power to make orders in a de facto financial cause under section 90SK. A couple may later satisfy the jurisdictional gateways for orders, for example by returning to Australia or through substantial contributions made in Australia, but they cannot retrospectively create a valid de facto BFA from outside Australia. The window to contract in advance closes the moment they leave.
The position is more nuanced for couples who leave Australia, spend time in England, and then return. Once back in Australia, the option to enter into a de facto BFA becomes available again, and the Australian court’s jurisdiction may also revive. Time spent living together in England does count toward the total length of the de facto relationship, which matters for the two-year gateway. However, time spent in England does not count toward the Australian geographical connection that the court also needs to be satisfied about before it can make orders. For couples who have spent a relatively short time in Australia on either side of an extended stay in England, this can create a real gap in protection and is a further reason to take advice before leaving rather than assuming the position can be fixed on return.
The marriage question
For couples who are engaged or planning to marry, the position is different. A marital BFA under section 90B of the Family Law Act has no residence requirement and can be entered into wherever the parties live. Counter-intuitively, for some international couples, marriage can itself function as a planning tool, unlocking the BFA regime while living abroad and in circumstances where a de facto agreement is no longer available.
This will not be the right answer for every couple. But for those with significant Australian assets or connections, and a genuine intention to marry at some point, the timing of that decision can have real legal consequences.
In my experience, there is a tendency to assume that because Australian and English family law share common roots and operate on broadly similar principles in many respects, the two systems will produce comparable outcomes. That assumption can lead to important gaps being overlooked. The absence of any statutory regime for cohabitants in England is one of the most significant of those gaps, and it is one that affects both parties to a relationship, not just the financially weaker one. Anyone relocating as a couple, in either direction, should check the rules that will apply to their specific situation before they move rather than after.
Practical steps
If you are an Australian de facto couple considering a move to England, or if you are already abroad and have not yet taken advice, there are several questions worth addressing before you go:
• Have you entered into a Binding Financial Agreement? If not, are you still based in Australia and therefore still able to do so?
• Do you understand what protections you currently have in Australia, and what you will lose on relocation?
• If you are planning to marry, have you considered the timing of that decision in light of your Australian legal position?
• Do you have significant Australian assets, superannuation, or property that would be affected by a relationship breakdown?
These are not questions to leave until after you have moved. Forum and financial agreement strategy needs to be front-loaded. By the time you raise the issue, the window to act may already have closed.
Written by Charlotte Symes, Partner
