DE FACTO RELATIONSHIPS

DE FACTO RELATIONSHIPS

Why is it important to know if you are in a de facto relationship?

In Australian law the mere formation of a de facto relationship does not give rise to immediate legal rights or obligation, but since 2009 couples who are, or were, in an eligible de facto relationship can approach the Family Court at the end of the relationship for property or maintenance orders, in the same way married couples can. Knowing that you are in a marriage is mostly clear, but some people only discover that they were actually in a de facto relationship, and not just a “casual” relationship,  when the other party insists on a property adjustment order !

When are you in a de facto relationship? 

Section 4AA of the Family Law Act simply says you are in a de facto relationship if:

• You are not legally married to each other; and
• You are not related by family; and
• You have a “relationship as a couple” living together on a genuine domestic basis.

This sounds simple enough, but when do you have a “relationship as a couple” and when do you live together on a “genuine domestic” basis?  The definition of de facto thus depends on the particular circumstances of the couple. Each case is examined individually on the circumstances of the case.

A de facto relationship can exist between two people of the same or different sex. It can even exist if one of the parties is legally married to someone else, or in another de facto relationship with someone else. The Family Law Act specifically acknowledges that a person can be in a de facto relationship regardless if they are in another de facto relationship. You can even be considered to be in more than one de facto relationship at the same time.

To assist in determining whether a couple is in a de facto relationship the law has formulated a set of factors that would be considered when determining if you are in a de facto or a “casual” relationship.

What to consider:

• How long have you been in the relationship?
• Is there a sexual relationship?
• To what extent is there financial dependence, or interdependence between you and your partner?
• What is the nature and extent of your common residence?
• Who owns the property? Who paid for it? Who is using it?
• Is there a mutual commitment to a shared life?
• Do you have children together?
• Who cares for and supports the children?
• Is your relationship public?
• What is the reputation of your relationship?
• Is the relationship registered under State or Territory law?

The Court does not need to be satisfied of all the above factors to decide that a de facto relationship exists. Spencer & Speight (2014) FamCA is a good illustration of the court’s approach where the de facto status of the relationship is in dispute. It was in dispute whether the parties had a sexual relationship. The Court commented that “sexual relationship” had a wider meaning in Family Law and found that they had an “intimate relationship”. It does not have to include physical sexual intercourse; intimate relationship means different things to different couples. Each case will be determined on its own facts. In this case the Court was satisfied that a de facto relationship was established.

Can you register your de facto relationship?

• Yes, most states and territories allow you to register a de facto relationship through the state’s Registry of Births, Deaths and Marriages. You will receive a certificate, which you can use as proof of the de facto relationship and how long you’ve been together. Registration may cause rights and obligations that are similar to marriage. These rights and obligations may be created even though the parties have not lived together for a period of two years.

What happens if your de facto relationship ends?

If you are not legally married you do not need a Divorce Order, but like a married couple you can apply to either the Family Court or the Federal Circuit Court to have your financial matters determined. In Western Australia you apply to the Family Court of Western Australia. You can also apply to the Court to determine issues related to the children of the de facto relationship. (The 2009 amendments only refer to property and maintenance matters, but Family Law, which always included unmarried couples, covers parenting matters).

There are a few ways to sort out property and parenting matters. You can either:

• Reach agreements without getting the Court involved, or
• You can reach agreements and have it formalized in Court by applying for Consent Orders, or
• If you can’t agree, you can apply to the Court for orders.

The Court can make orders regarding the division of property that you own jointly or separately. It may order splitting superannuation, or that one party must pay spousal maintenance. When determining a property settlement, the court will evaluate the types of contributions, financial and non-financial, that both parties made, as well as their future needs.

Before the Court will decide on your matter you need to establish the following:

• That you were in a genuine de facto relationship, and the relationship lasted for at least two years, or
• there is a child from the de facto relationship, or
• one of the parties to the de facto relationship has made significant financial or non financial contributions during the relationship and the failure of the Court to make an order would result in a serious injustice to the applicant, or
• your relationship was legally registered in a State or Territory

You also need to satisfy the Court that you are geographically connected to the jurisdiction, and that your relationship broke down after 1 March 2009 (or after 1 July 2010 if you are geographically connected to South Australia).

In Spencer & Speight the relationship lasted for less than two years, but the Court found that one party made a “substantial contribution” and proceeded to make a property adjustment order.

Get legal advice

If you are unclear about the status of your relationship, or you suddenly find yourself having to defend a property adjustment order, get legal advice as soon as possible. Your relationship might be more than “casual” and you may end up having to pay out a substantial amount of money when the relationship comes to an end. An experienced family lawyer will be able to give you the correct advice to protect your rights.