Am I in a de facto relationship?

This is a very common question in the family law space. There appears to be a lot of uncertainty about whether a relationship is an de facto relationship or not. This is hardly surprising given that different agencies, such as Centrelink or the Department of Immigration, apply different rules.

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.

While that definition might seem clear, in reality the definition can still require the Court to make a determination about whether or not a de facto relationship exists.

What will a court consider?

Firstly, the couple needs to have been in a "genuine domestic relationship." There are various indicators as to whether that is the case, such as:

• the duration of the relationship;

• the degree of financial dependence or interdependence and any arrangements for financial support between them;

• the degree of mutual commitment to a shared life;

• whether a sexual relationship exists;

• the reputation and public aspects of the relationship; or

• the nature and extent of any common residence.

If there is a "genuine domestic relationship", then one of the following needs to exist:

• the couple have been in the relationship for at least 2 years; or

• there is a child of the relationship (in which case there is no time requirement); or

• it would be unjust not to recognise a de facto spouse's financial or non-financial contribution.

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

The Court has previously considered evidence such as:

• love letters between the parties

• text messages and emails between the parties

• statements from friends and family about the relationship

• photos of the couple at public events and on social media bank account statements

• whether a person is listed as a spouse on the other person's tax return

Can a de facto relationship exist in the parties are not living together?

A recent case from the Federal Circuit Court considered an application for a property settlement where the parties had a child together but had not lived together. The facts involved two friends, who after a one-off sexual encounter discovered that the female (the applicant in this case) was pregnant.

During the time prior to the birth of the child, the parties had spent time together and this had included sharing meals and spending time socialising. There was evidence that the parties had spent two nights together, but otherwise had maintained their own separate residences.

Following the birth of the child, the respondent father ceased all communication with the applicant and the child, even refusing to sign the child’s birth certificate.

As there was a child of the relationship, the parties were not obligated to satisfy the requirement that the de facto relationship was of at least two years duration.

The Judge highlighted the need for a “genuine domestic relationship” to exist, noting the difference between parties merely “dating”. Taking into consideration the overall circumstances that the parties had been in, the Judge ruled that the parties were not in a de facto relationship as it failed the test of being a “genuine domestic relationship”.

What does this mean?

People who are in a de facto relationship have the same rights to access the Family Law Courts as married couples.

However, unlike a marriage where there is a defining act that provides evidence of their commitment to a shared life, parties who have been in a relationship and not married may not agree about the nature and extent of their relationship when it ends. Parties often argue about whether the relationship was a de facto one or not and, if it was, how long it lasted.

Obviously, there are significant consequences for a party who may not have considered they could be in a de facto relationship if, when their “relationship” ends, the other party asks for certain assets or financial support to assist them post separation.

There are steps you can take before you start living with your partner, such as entering into a financial agreement which sets out what will happen with assets and financial resources in the event the relationship ends. This will help minimise conflict between you and your partner.

The implication of finding yourself being in a de facto relationship can be wide ranging and can be particularly important to the person who may be in a financially superior position than the other person.

What does this mean?

If you would like advice as to whether you are in a de facto relationship and/or the ways you may be able to protect your financial interests please contact our office on (07) 5458 9000 for a free chat with one of our solicitors.

Read the full article here.