When Are You in a De Facto Relationship?

This is a question we sometimes get asked, usually in relation to concerns by a client as to whether their new partner would have a property claim against them.

For the purposes of the Family Law Act, two people (whether of the same or opposite sex) are in a de facto relationship if they are not married to each other, are not related by family but are living together as a couple on a genuine domestic basis.  The lines of the definition can become blurred especially when people live together but only on a part-time basis and do not share bank accounts and living expenses, for example.  As a result of circumstances like this and where the relationship breaks down and one party makes a claim for some kind of property settlement, the Court may have to make a determination about whether or not a de facto relationship exists.

When considering whether a couple is living together on a genuine domestic basis, the Family Law Courts would have regard to factors like:

• The nature and extent of any common residence.
• Whether the parties live together part-time or full-time.
• Whether a sexual relationship exists.
• The reputation and public aspects of the relationship.
• The degree of financial dependence and support between the parties.
• The degree of mutual commitment to a shared life displayed by the parties.
• The care and support of any children.

No factor is given more weight than another and the Court may give any weight it considers appropriate to a particular fact or circumstances of the relationship.

It is possible for a person to be married but in a de facto relationship with a different person at the same time.

For the purposes of establishing whether a de facto relationship exists, for the purposes of considering whether or not a property settlement would or should be made, the following criteria is applied:

1. The parties have been in a de facto relationship for at least two years;
2. The parties have been in a de facto relationship for less than two years but there is a child of the de facto relationship;
3. The relationship might be less than two years but is registered as a de facto relationship under a State or Territory law; or
4. The parties have been together for less than two years but the applicant party has made substantial contributions to jointly owned property or property belonging to the other party such that if the Court failed to make an order for property settlement it would result in a serious injustice being done to the applicant party.

In family law matters of all types we offer our clients a free half hour initial conference during which time we gather relevant information and then impart information and advice which we feel will be most helpful for them.

If you need assistance please call us on 9543 1444.