What is a de facto relationship and what you need to know

The term ‘de facto’ has the common meaning of “living together” in a marriage-like situation but has a stricter definition in Family Law legislation. Many myths surround the treatment of de facto relationships in Family Law. Here’s what you need to know.

According to the Family Law Act 1975 (Cth) a de facto relationship is one that is characterised by the following features:

• The couple are not legally married to each other
• The couple are not related by family
• They have a relationship as a couple living together on a genuine domestic basis for at least 2 years

Where things get messy is that it is possible to have more than one de facto relationship at the same time and even be married to one person and in a de facto relationship with the other. A ‘de facto’ relationship may be found by the Court where one party has no actual intention of being defined as such, where there are still separate households but time is spent across both but other legal elements exist satisfying the criteria.

If there is doubt that a de-facto relationship exists, the partner seeking to prove that relationship must seek a declaration in Court as a preliminary step before the Court can make orders. Surprisingly; it is not necessary to prove that a sexual relationship exists; being just one of several factors considered by the Court when determining the nature of the relationship.

8 things the court takes into consideration when determining if a relationship is de facto:

1. Duration of relationship
2. Nature and extent of common residence
3. Whether a sexual relationship exists
4. Degree of financial dependence, interdependence, and any arrangements for financial support between them
5. Ownership, use and acquisition of property
6. Degree of mutual commitment to a shared life
7. Care and support of children
8. Reputation and public aspects of relationship

In determining the existence of a de facto relationship, each case will be decided on its own facts. One such case in which a “living together” relationship was not proved was Jonah & White [2011] FamCA 221 despite a 17-year relationship.

The consequences of being defined as ‘de facto’, legally, are like being married; financial orders can be made adjusting property interests between the parties and orders can be made for spousal maintenance once it is established that a de facto relationship existed. Tips to protect your assets in a de facto relationship can be found here.

Streeterlaw are experts in all Family Law matters. For further information or to discuss your personal circumstances and how we can help you, call us on 02 8197 0105 or email advice@streeterlaw.com.au.