Are You In a De Facto Relationship?

This might sound like a particularly easy question to answer, especially if you and your partner live together. But your relationship may not in fact constitute a “de facto relationship” for the purposes of the Family Law Act! Read on to find out more.

What exactly is a de facto relationship?

Section 4AA of the Family Law Act 1975 (‘the Act’) regards that a person is in a de facto relationship with another person if:

a) The persons are not legally married to each other; and
b) The persons are not related by family; and
c) Having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

A de facto relationship can exist between two people of different sexes or two people of the same sex.

How does a Court determine whether I’m in a de facto relationship?

Family law is a discretionary jurisdiction! There is, unfortunately, no precise formula and no definitive answer.

In determining whether a relationship is a de facto relationship for the purposes of the Act, the Court looks at a number of factors, such as:

a) the duration of the relationship;
b) the nature and extent of the parties’ common residence;
c) whether a sexual relationship exists;
d) the degree of financial dependence or interdependence, and any arrangements for financial support between the parties;
e) the ownership, use and acquisition of their property;
f) the degree of mutual commitment to a shared life;
g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
h) the care and support of children;
i) the reputation and public aspects of the relationship.

The Court is entitled to have regard to such matters, and to attach such weight to any matter, as deemed appropriate in the circumstances of the case. This again highlights the very discretionary nature of the family law jurisdiction!

How do I make a claim?

Prior to 2009, de facto couples were not recognised by the Act and instead, were forced to pursue an application through either the Supreme Court or County Court. Legislation came into effect on 1 March 2009 that brought de facto couples under the Act. Nowadays, separating de facto couples have substantially the same rights as married couples.

The applicant has a two year time limit to make a claim against a de facto partner for property settlement or spousal maintenance. If more than two years has elapsed since your separation though, you may have grounds to seek leave to file an application out of time.

The Act also requires that the person making the application must prove that a de facto relationship existed for a period of at least two years.

Did you know?

Did you know that a de facto relationship can exist even if one of the persons is legally married to someone else or is in another de facto relationship? It sure can!

Can we help you?

Still unsure whether you might be entitled to make a claim for property settlement or spousal maintenance against your former de facto partner?

Surely you’ve heard of a pre-nup? In Australia, they’re called a Binding Financial Agreement (‘BFA’). If you’re thinking about moving in with your partner, you may want to consider how a BFA can protect your assets. /prenuptial-agreement/

Get in touch with one of our specialist family lawyers for advice today.

Reviewed Date: 04 Aug 2016

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