We get asked this question a lot. There appears to be a lot of uncertainty about when a relationship becomes a de facto relationship. This isn't surprising given that different agencies, such as Centrelink or the Department of Immigration, apply different rules.
Two people (whether of the same or opposite sex) are in a de facto relationship for the purposes of the Family Law Act if: they are not married to each other; are not related by family; but are living together as a couple on a genuine domestic basis.
While that definition might seem clear, in reality, though, the definition can still require the court to make a determination about whether or not a de facto relationship exists.
When considering whether a couple is living together on a genuine domestic basis, the family law courts will have regard to factors like:
- the nature and extent of any common residence
- whether a sexual relationship exists
- the reputation and public aspects of the relationship
- the degree of financial dependence and support between the parties
- the degree of mutual commitment to a shared life displayed by the parties
- the care and support of any children.
No factor is given more weight than another and the court may give any weight it considers appropriate to a particular fact or circumstance of the relationship.
The court has previously considered evidence such as:
- love letters between the parties
- text messages and emails between the parties
- statements from friends and family about the relationship
- photos of the couple at public events and on social media
- bank account statements
- whether a person is listed as a spouse on the other person's tax return.
It is possible for a person to be married but in a de facto relationship with a different person at the same time. A person may also have more than one de facto partner at the same time.
The family law courts can make an order for a property settlement when a de facto relationship ends where:
- the parties have been in a de facto relationship for at least two years
- there is a child of the de facto relationship
- the relationship was registered under a state or territory law
- the applicant party has made substantial contributions such that failure to make an order would mean serious injustice to the applicant.
People who were a party to a de facto relationship have the same rights to access the family law courts for property adjustment orders as people who were married.
However, unlike a marriage where there is a defining act that provides evidence of their commitment to a shared life, parties who have been in a relationship and not married may not agree about the nature and extent of their relationship when it ends. Parties often argue about whether the relationship was a de facto one or not and, if it was, how long it lasted.
Obviously, there are significant consequences for a party who may not have considered they could be in a de facto relationship if, when their relationship ends, the other party seeks an order for maintenance or a property settlement.
There are steps you can take before you start living with your partner, such as entering into a financial agreement which sets out what will happen with assets and financial resources in the event the relationship ends, which will help minimise conflict between you and your partner.
Cooper Grace Ward is a leading Australian law firm based in Brisbane.
This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please contact Cooper Grace Ward Lawyers.