Definition of a de facto relationship

The Family Law Act has devised a threshold that a couple must satisfy before they can be defined as de facto in the eyes of the law. While it relies on each couple’s circumstances, the following factors must be taken into account:

1. the duration of the relationship;
2. the nature and extent of their common residence;
3. whether a sexual relationship exists;
4. the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
5. the ownership, use and acquisition of their property;
6. the degree of mutual commitment to a shared life;
7. whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
8. the care and support of children; and
9. the reputation and public aspects of the relationship.

These factors are not to be weighed against each other but are to be given individual weightings of importance.

What constitutes residing together? When a couple does not live together in the same residence full-time, the Court is required to consider how many nights and how often the parties live together.

This question was considered in the case of Keene & Scofield [2013] FCCA 1107 (2 September 2013). The applicant in this case, Mr Keene, alleged that he and the respondent, Ms Scofield, were a committed couple “who shared every aspect of life together and who were engaged to be married”. The respondent, on the other hand, alleged that although there was intimacy present, the relationship “never reached a point where it could be considered to be a coupling of two individuals into a common unit”.

The parties knew each other since mid-2004. The respondent had lived in one property since 1992 and the applicant bought the property next door in 2006. The applicant was of the belief that he bought this property “as part of a joint enterprise” with the respondent as she provided him the sum of $114,892.00 towards its purchase price. The respondent asserted that the funds were lent to the applicant in expectation that the entire amount would be reimbursed with interest.

The onus was on the applicant to prove the existence of the de facto relationship. In support of his case, the applicant pleaded the following factors:

1. he was a surrogate parent for the respondent’s two children;
2. he performed many parental responsibilities for the respondent’s children;
3. he was an integral part of the respondent’s immediate family, taking most of his meals at her property and also sleeping there regularly;
4. he and the respondent regularly holidayed and socialised together;
5. he and the respondent assisted one another with tasks from time to time and were engaged in a sexual relationship;
6. he and the respondent purchased the second property together; and
7. that following the purchase of the second property, the parties had an implicit agreement that he would take care of the respondent’s and her children’s day-to-day needs in exchange for the funds that she had provided to him for the purchase of the property.

One of the main factual issues in this case concerned the degree of the applicant’s involvement with the respondent’s household and family. The Court was of the view that there was a relationship between the parties but the relationship was not of the kind aspired by the applicant. The applicant failed to provide evidence to establish financial interdependence between the parties and he further failed to call any independent evidence to support his assertions with respect to the nature of his relationship with the respondent.

The Court held that the parties were not a couple living together on a genuine domestic basis and were not a de facto couple. The parties were held to have led distinct and autonomous lives in many respects.

The circumstances of every couple are different.

When determining whether a de facto relationship exists, the Court must consider all the circumstances of the case before it can determine whether the parties had a relationship as a couple residing together on a genuine domestic basis. This involves a degree of union between the parties and a merger of their lives.

Streeterlaw advises you to seek legal advice as to the status of your relationship before filing an application. To discuss your particular situation, please contact Streeterlaw’s Family Law Specialist on 8197 0105 or email advice@streeterlaw.com.au