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.
Seek professional advice on your de facto relationship breakdown
At Damien Greer Lawyers, we have significant experience in dealing with the legal aspects of a relationship breakdown whether it is a marriage or a de facto relationship. To obtain advice following the breakdown of a de facto relationship, call our team today on 3837 5500.