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    What is a de facto relationship?

    Jul 22, 2020 12:30:29 PM

    Some people may worry that when they enter into a relationship they will be classified as de facto, which in turn has an impact on whether they may be exposed to a claim for a property settlement or maintenance upon the breakdown of a relationship.

    According to the Family Law Act 1975 (Cth) (“the Act”), you are in a de facto relationship with another person if you are not legally married to them, are not related by family, and have a relationship as a couple living together on a genuine domestic basis: Section 4AA. But what does that actually mean?

    In Roy v Sturgeon (1986) 11 NSWLR 545, Powell J acknowledged that “the attributes and circumstances of [de facto] relationships differ greatly, ranging from what is little more than a casual liaison to a continuing affectionate companionship, to a long-term merging of lives and resources”. In assessing whether someone is or was party to a de facto relationship, the Court considers factors including:

    • The length of the relationship,
    • The living arrangements,
    • The existence of a sexual relationship,
    • The arrangement of interdependent finances,
    • The ownership of any purchased property,
    • The degree of mutual commitment to a shared life,
    • Whether the relationship was registered under state or territory law,
    • The care and support of children, and
    • The reputation and public aspects of the relationship: Section 4AA(2) of the Act.

    Importantly, the law also recognises that a party could be in multiple de facto relationships or could be married to someone while being in a de facto relationship with someone else.

    Generally, if you would like to bring property settlement proceedings against a de facto partner, you will need to demonstrate that you have lived together for a total of at least 2 years, unless there is a child of the relationship or other exceptional circumstances, including if a failure to make an order would result in serious injustice to a party or the parties had otherwise registered their relationship as de facto: Section 90SB of the Act.

    For example, if you cohabitate for approximately 1 year and have a child together, the law would not preclude you from bringing an application for a property settlement or maintenance in the Family Court or Federal Circuit Court because of the shorter length of the relationship.

    Notwithstanding this, the first order that is often sought from the Court is a declaration of whether a de facto relationship did in fact exist. The Court must duly consider and determine this issue prior to considering the issue of altering property interests. It is also crucial to remember that, when commencing property proceedings in a de facto relationship, you must do so within 2 years from the date of separation. There is no time limit if bringing parenting proceedings.

    If you have further questions please contact us at frank@franklaw.com.au

    This is not legal advice. 

    Karla Elias

    Written by Karla Elias