Am I in a de facto relationship?|
A de facto relationship is defined in section 4 AA of the Family Law Act 1975 as a relationship in which a couple lived together on a genuine domestic basis. For a de facto relationship to exist, the parties must have lived together as a couple for at least two years without separation. However, there are exceptions to the “two year rule”, for example if there is a child of the relationship or substantial contributions were made.
Same sex couples are included in the definition of a de facto relationship under Australian law.
If you are in a de facto relationship, your rights regarding property settlement, child maintenance and separation are dealt with under the Family Law Act 1975.
Parties have two years from the date of separation to apply to the court for a property settlement and/or spousal maintenance, unless special permission is obtained from the court to make a late application.
Am I in a de facto relationship? This can be a tricky question.
Unfortunately, there is no clear signal that marks when a couple becomes de facto. The law considers various factors when determining whether a couple is in a de facto relationship. These include
- the duration of the relationship;
- whether the relationship is sexual in nature;
- financial dependency;
- the degree of mutual commitment to a shared life;
- whether the relationship is registered in an Australian state or territory;
- whether the couple have acquired property together;
- whether there are any children of the relationship;
- the public aspects of the relationship, such as reputation.
It is not essential for all of the above factors to be present, nor is one factor necessarily be given more weight than the other. Moreover, both legislation and the courts have acknowledged that a de facto relationship can exist even if one of the persons in the relationship is legally married to someone else or in another de facto relationship with another person.
In the matter of Somers and Collier (2017) the trial judge was not persuaded that the evidence demonstrated the parties had a mutual commitment to a shared life. This is despite the parties having dated for over a decade, sustained a monogamous sexual and romantic relationship, lived together for a 20 month period and had even invested in property together. They attended social and family events as a couple over many years and were known to family and friends as a couple. The trial judge found that the parties lacked financial interdependence and commitment to the relationship. Weight was given to the fact that neither party referred to the other as a partner on any third-party notification including tax returns or health insurance certificates. The trial judge also placed a weight on the fact that the parties chose to live independently for most of their relationship and occupied separate bedrooms during the period they lived together.
Having made this determination, the Family Law courts were deemed not to have jurisdiction to make any orders in relation to the division of the parties’ assets.
For individuals who are considering entering into a de facto relationship by moving in together or if you have already moved in together, it is important to understand the implication of such an arrangement. Avoiding saying the “I do” may not protect you from a potential property claim being made against you if the relationship breaks down. Likewise, any contributions you may be making during the course of your relationship may be lost and your future needs may not be taken into account after separation if you are deemed not to have been in a de facto relationship. So, you may wish to give consideration to the preparation of a Binding Financial Agreement which can provide certainty in the event of a relationship breakdown.
If you would like advice regarding your particular circumstances please contact our experienced family lawyers at Robinson Gill on 9890 3321
By Demi Vlachogiannis