What is a de facto relationship in Australian law

What is a de facto relationship in Australian law?

A de facto relationship, under the Family Law Act 1975, is defined as a relationship between two people (who are not legally married or related by family) who, having regard to all of the circumstances of their relationship, lived together on a genuine domestic basis.

Covered under Section 4AA of the Family Law Act 1975 a de facto relationship aims to safeguard the increasing number of couples who cohabit but do not enter into a marriage.

How are de facto relationships determined?

There is a lot of confusion about the definition of a de facto relationship, not only because of the circumstantial nature of the definition under section 4AA(2) of the Family Law Act 1975 but because of different definitions used for different purposes – for example, for Centrelink purposes, a couple is considered to be in a de facto relationship from the moment they start living together, while under migration law, parties must be able to show that they have been living together for a period of 12 months or longer.

Under the Family Law Act 1975, the rules are not so straightforward and there is an added degree of complexity when determining whether two people have been in a de facto relationship as the Court instead evaluates the following factors:-

• The duration of the relationship (i.e. whether the parties have lived together for a period of 2 years or longer);
• Whether a sexual relationship existed;
• Whether there are any children of the relationship;
• Whether a sexual relationship existed between the parties;
• The extent and nature of shared residence;
• The degree of financial dependence between the parties;
• The degree of mutual commitment toward a shared life;
• The reputation and public aspects of the relationship; and/or
• Ownership, use and acquisition of the parties’ property.

What the Courts have made clear, however, is that is it not a prerequisite for all of the above factors to be present nor will one factor necessarily be given more weight than another.

Furthermore, both the legislation and the Courts have acknowledged that a de facto relationship can exist even if one of the persons in the de facto relationship is legally married to someone else or in another de facto relationship with another person.

While married couples simply need to show their marriage certificate to prove the existence or the length of their marriage, de facto couples are often faced with the challenge of proving these things if the other party disputes it.

If there is any dispute about the existence of or the length of the de facto relationship, seeking professional legal advice is highly recommended to ensure that you meet the relationship criteria prior to making your application and to ensure that you are able to provide enough evidence (if necessary) of your relationship sufficient for the Courts to make a declaration that a de facto relationship existed – otherwise, cost consequences may follow.

Time limits on a de facto claim

To make a claim post separation under de facto status, applicants have a two-year period from date of the relationship breakdown in which to initiate Court proceedings.

The practical difference between a de facto relationship and marriage

Society has changed significantly, and the rate of traditional matrimonial relationships has declined while de facto relationships have grown in number.

Additionally, in Australia, couples may no longer feel the need for a traditional marriage due to the fact that de facto couples who separate are protected under the Family Law Act 1975 provided they meet de facto criteria.

The definition of a marriage vs the definition of a de facto relationship

A traditional matrimonial relationship i.e. a marriage is fairly global in understanding.  In Australia, the definition of a marriage can be found under the Marriage Act 1961.  The definition, recently amended in recognition of marriage equality, is quite simply defined as the union of 2 people to the exclusion of all others, voluntarily entered into for life.

On the other hand, a de facto relationship is defined under the Family Law Act 1975 and is much more complex in its nature and application.

Broadly speaking however,  a person is considered to be in a de facto relationship with another person if:

• the persons are not legally married to each other; AND
• the persons are not related by family; AND
• having regards to “all of the circumstances of their relationship”, they have “a relationship as a couple living together on a genuine domestic basis”.

Having regard to the above definition, it is no wonder that people are unclear about whether they satisfy the criteria for a de facto relationship.

But the definition doesn’t end there. The legislation goes on to provide further criteria to work out whether two persons have “a relationship as a couple”.  These further criteria include:

• The duration of the relationship (i.e. whether the parties have lived together for a period of 2 years or longer);
• Whether a sexual relationship existed between the parties;
• Whether there are any children of the relationship;
• The extent and nature of shared residence;
• The degree of financial dependence between the parties;
• The degree of mutual commitment toward a shared life;
• The reputation and public aspects of the relationship; and/or
• The ownership, use and acquisition of the parties’

Cohabitation (for a period of at least 2 years) is usually the clearest indicator of that relationship but couples may also fall into the definition of a de facto relationship without living together for this length of time if they can evidence that they have a child together or that they have made significant contributions during the relationship and a failure by the Court to make an Order would result in a serious injustice to the applicant.

The practical consequences of the difference between a marriage and a de facto relationship

So, while married couples simply need to show their marriage certificate to prove the existence of and length of their relationship to invoke the jurisdiction of the family courts, a person in a de facto relationship is often faced with the additional challenge of proving the relationship if the other party disputes it.

If there is any dispute about the existence of or the length of the de facto relationship, seeking professional legal advice is highly recommended to ensure that you meet the relationship criteria prior to making your application and to ensure that you are able to provide enough evidence (if necessary) of your relationship sufficient for the Courts to make a declaration that a de facto relationship existed – otherwise, cost consequences may follow.

Time limits

Married parties who separate need to wait at least 12 months from the date of separation in order to make an Application for Divorce.  The significance of this is that once a Divorce Order is made, parties have a period of 12 months from the date of the Divorce Order in which to initiate proceedings under the Family Law Act for property settlement matters.

In practice this means that married but separated parties who chose not to divorce, do not lose their standing to apply to the family court for a property settlement (whether they are ultimately successful in the Orders they seek is, however, a different question) as the time limit does not expire until after the making of a Divorce Order.

It also means that parties who obtain a divorce have a very clear understanding of when their time limit will expire – all they have to do is refer to their Divorce Order, which advises them, in unambiguous terms, that they have 12 months from the date upon which the divorce order took effect to make an application for property settlement.

However, de facto parties who separate have a period of 2 years from the date of separation in which to initiate proceedings. While this seems straightforward enough, there are, quite often, disputes about when separation actually occurred.  This can result in more complex proceedings and additional costs to both parties to prove when separation occurred and/or to prove that they are within or outside of the time limit imposed for initiating proceedings.

We therefore recommend that parties who separate from a de facto relationship seek legal advice in a timely manner in order to ensure that they are both aware of the time limits and aware of what evidence will need to be presented should any dispute arise as to when the de facto relationship ended.