When does the law acknowledge a de facto relationship?

15-May-2012 Family Law By Simone Green



Interestingly, the length of a de facto relationship is not the only criteria for determining its legitimacy in the eyes of the law.

Did you know that you can be in a de facto relationship provided that you meet the criteria in the Family Law Act?  There are a number of indicative factors identified by Justice Powell in the case of Roy v Sturgeon (1986). These criteria are:

  1. The duration of the relationship 
  2. The nature and the extent of the common residence
  3. Whether or not a sexual relationship existed
  4. The degree of financial interdependence and any arrangements for support between or by the parties
  5. The ownership, use and acquisition of property
  6. The procreation of children
  7. The care and support of children
  8. The performance of household duties 
  9. The degree of mutual commitment and mutual support
  10. Reputation and “public” aspects of the relationship


Changes to de facto relationship jurisdiction

The Family Law Court will go to great lengths to question facts in each case.  In 2009, the jurisdiction for de facto couples moved from the Supreme Court of NSW into the Family Court. Accordingly, the Family Law Act now covers “the fields” in relation to applications relating to property and maintenance of de facto couples.

Section 90SB of the Family Law Act states that the Court can make a declaration as to the existence of a de facto relationship if the period (or the total of the period) of the de facto relationship is at least two years.

However, the Court may also intervene to declare the existence of a de facto (and start amending property interests or making orders for maintenance) if:

  • There is a child of the de facto relationship or a party to the de facto relationship has made substantial contributions to the relationship; or
  • A failure to make an order or declaration would result in serious injustice to the applicant; or
  • The relationship was registered under a prescribed law of New South Wales.

The law acknowledges de facto relationships that are at least two years’  duration, but it may also choose to acknowledge de facto relationships of less duration.

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