What Is A De Facto Relationship Under The Law In Australia?
The law in Australian recognises that families come in all shapes and sizes. The existence of de facto relationships has long been recognised under Australian law, and so have the rights of those in de facto relationships to apply to the Court to have orders made in their favour regarding both parenting matters, and property matters. This is extremely important to remember, because often clients seeking legal advice regarding family law matters mistakenly believe that unless they’re married, they are not creating legal obligations between themselves and their partner – indeed the wish to avoid creating legal rights and responsibilities between them and their partner may be the central reason why the parties have not actually gotten legally married, despite living together.
So what exactly is a de facto relationship under the law in Australia?
Quite simply, under the law in Australia, if there is no marriage or de facto relationship, the Court does not have jurisdiction to make orders for the adjustment of property interests or the declaration of property interests for a separated couple. That is, the Court does not have the power to make Orders for a property settlement between the parties. Under section 4AA(1) the Family Law Act 1975, a de facto relationship is defined as existing where:
- 1. The persons are not legally married to each other; and
- 2. The persons are not related by family; and
- 3. Having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
From the above definition, requirements (a) and (b) are often uncontroversial.
But what does requirement (c) mean, in practice?
Fortunately subsection 4AA(2) of the Family Law Act 1975 gives parties guidance of what kinds of things the Court will look at if the Court has to decide if the parties have a relationship as a couple living together on a genuine domestic basis. The Court looks at:
- 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 live;
- 7. Whether the relationship is or was registered under a prescribed law of a Sate 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.
De Facto Relationships Law
Most importantly, however, the law is clear in Australia that the above are not all the factors the Court will look at, nor do all the listed requirements have to be fulfilled for the Court to be satisfied a de facto relationship exists in any specific case. Additionally, de facto relationships have been found to exist for heterosexual couples, homosexual couples – and even couples where one or both parties is actually legally married to someone else! Other factors that have influenced in the Court in various cases in recent years include:
- 1. The performance of household duties by one party for the other;
- 2. The degree of mutual commitment and mutual support;
- 3. Whether or not the parties have kept and maintained separated households;
- 4. The relationships (or lack thereof) between one of the parties to the de facto relationship, and the other party’s children; and
- 5. The amount of time the parties spend with their respective families.
De Facto Relationships & The Court
When the Court is determining if a de facto relationship exists, the Court has wide discretion to consider and give weight to whatever factor the Judge wishes. That means that a particular Judge deciding the case is not required to go through a checklist and answer the question as though they have a formula – the Judge can look at all the factors in a particular case, and give as much attention or meaning to any factor(s) that they think are important in the particular case. Further, if the question is one for the Court, what will ultimately matter is what the Judge believes to be the case overall, regardless of what one or both of the parties believed to be the case regarding the status of their relationship at any particular point in time. This means that parties acting in certain ways may be living in circumstances a future Judge may decide is a de facto relationship – regardless of the party’s intention or understanding of their own situation. So if you are in a de facto relationship with another person, or about to enter into a de facto relationship with another person, and an issue has arisen whereby the existence (or not) of a de facto relationship may be important, please don’t hesitate to call Argent Law on 03 9571 7444 for a confidential discussion. Further, if you are about to separate, or have separated from your partner, and the above makes you question if you were in a de facto relationship under the law, and you therefore may be eligible for a property settlement or spousal maintenance, that is also another good reason to give Argent Law a call to speak to one of our experienced
Finally, whether or not you’re in a de facto relationship may affect:
Your rights and responsibilities under your Will, Powers of Attorney or Guardianship arrangements; Whether you’re eligible for a first home buyers grant; Whether stamp duty is payable on a property transfer; and Parenting arrangements, including:
- 1. presumptions of paternity of children, and payment of child support, and
- 2. parenting arrangements in the event of the death of a party to a de facto relationship; and
- 3. parenting arrangements in the event of separation of the parents.