DE FACTO RELATIONSHIPS

When are you in a De Facto Relationship

 

Am I in a De Facto Relationship

 

How do you know if you are in a De Facto Relationship the Courts would recognise?

Whether or not you were in a de facto relationship will be important to determine if you have any property settlement entitlements if your relationship breaks down.

You might be living together, combine incomes and feel it obvious you are in a de facto relationship or you might only spend some nights together each week and feel you are definitely not living in a de facto situation.

How long do you have to live together before you are in a de facto relationship recognised by a Court?

There are some basic "threshold" criteria which firstly determine whether you may qualify as being in a De Facto Relationship recognised by a Family Law Court under the Family Law Act 1975.

If you do not meet the requirements of those basic threshold criteria then at least in the Family Law jurisdiction, a Court would have to say you were not in a de facto relationship.

The Family Law Act 1975 (Cth) may apply to the property settlement or spousal maintenance applications of de facto couples except where they are:

  • from Western Australia;

  • from Queensland, New South Wales, Victoria, Tasmania, Australian Capital Territory or the Northern Territory and separated before 1 March 2009 (it will apply if you are from one of those States and you separated after 1 March 2009);

  • from South Australia and separated before 1 July 2010 (it will apply if you are from South Australia and you separated after 1 July 2010);
  • de facto couples outside Australia. 

Under the Family Law Act 1975 couples can be:

  • opposite sex;

  • same sex;

  • multi-partnered (amendments make it is possible for the Act to still apply to a person who is in two de facto relationships at the same time, or in a de facto relationship and a marital relationship at the same time).

 

Requirements to be a De Facto Relationship under Family Law Act - Step 1

 

To be a de facto couple under the Family Law Act 1975 there are 3 threshold jurisdictional criteria, all of which must be met:-

  • The couple must have a geographical connection to a participating State or Territory.  Western Australia is not.  South Australia is as from 1 July 2010.  Queensland, New South Wales, Victoria, Tasmania, Australian Capital Territory and the Northern Territory all are as from 1 March 2009; and

  • The relationship must be a genuine de facto relationship and not simply a dependent domestic relationship; and

  • The couple must have separated:
    • after 1 July 2010 if they are from South Australia;
    • after 1 March 2009 if they are from Queensland, New South Wales, Victoria, Tasmania, Australian Capital Territory or the Northern Territory. 

If separation occurred prior to those dates, the both parties would both would have to agree to “opt in” for the Family Law Act 1975 to apply. 

 

Requirements to be a De Facto Relationship under Family Law Act - Step 2

 

Under the Family Law Act 1975 as well as meeting the 3 threshold jurisdictional criteria, at least one of the following needs to apply:-

  • There is a child of the relationship; OR

  • One of the parties made a substantial financial or non financial contribution to their property, or as a homemaker or parent and serious injustice would follow if the Court did not make an Order; OR

  • The relationship is registered in a State or Territory that has a relationship register.  While registration is significant, it is not enough of itself to determine that a de facto relationship exists; OR

  • The couple were in a de facto relationship for at least 2 years.  This can be either:
    • one continuous 2 year period; or
    • made up of more than one separate period, but when added together the separate periods  total 2 years.

 

Requirements to be a De Facto Relationship under Family Law Act - Step 3

 

Under the Family Law Act 1975 the Court must consider:-
  • Duration of the relationship;

  • Nature and extent of their common residence;

  • Whether a sexual relationship exists;

  • Financial dependence or independence and any arrangements between them for financial support;

  • The ownership, acquisition and use of their property;

  • The degree of mutual commitment to a shared life;

  • Whether the relationship is or was registered in a State or Territory that has a relationship register;

  • The care and support of children;

  • The reputation and public aspects of the relationship. 

Although the court must consider these factors, none of the factors are more important or carry more weight, than any other factor.

None of those factors are conclusive. 

All of those factors the Court looks at are considered as a whole as to whether a de facto relationship exists. 

For more information on these factors read the fact sheet “Detailed checklist for the existence of a De Facto Relationship”.

Couples cannot be recognised as being in a de facto relationship if they are either:

  • related through family; or

  • legally married to each other.

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Content By:
Michelle Beatty
MRB LAW

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