What is a de facto relationship and how do I know if I’m in one?
Many people assume that two people are only in a de facto relationship if they have lived together for a certain period of time. However, the legislation is actually far more complex.
As a result, it is not uncommon for people to be unsure as to when a relationship is legally considered to be de facto and what may happen if it breaks down; will they each walk away with their separate assets, debts and superannuation or can the other person seek orders under the Family Law Act 1975 which might include a division of those separate assets, debts and superannuation and even spousal maintenance?
Threshold issues
The Federal Circuit and Family Court of Australia may only make orders as mentioned above where:
- the period (or total of the periods, if more than one) of the de facto relationship is at least two years (see below; that doesn’t necessarily require that two people lived together for two years); or
- there is a child of the de facto relationship; or
- one person has made a substantial contribution to the other person’s property such that a failure to make an order would result in a serious injustice (for example, where parties have purchased property in joint names); or
- they registered their relationship with the Registry in their State or Territory.
What are the requirements of a de facto relationship?
To be in a de facto relationship, a couple (heterosexual or same-sex) must not be legally married, must not be related by family and must, on balance, have a relationship as a couple living together on a genuine domestic basis.
The last requirement is the oftentimes controversial issue, with one person saying that they were living together on a genuine domestic basis and the other saying that they were not. This may need to be determined by the Court.
It can be the case that parties themselves do not realise they are in a de facto relationship, and possibly would have acted differently regarding their circumstances had they realised that their relationship would come to be viewed that way. It is not a requirement of the Court that the parties are monogamous, and there are instances where the Court has found that a person was in a de facto relationship whilst simultaneously being in a relationship with someone else.
Concurrent relationships
The Court has found that a person can be in a de facto relationship with somebody even if they are married to somebody else at the time. This can result in cases where arguments arise as to whether someone was having an extramarital affair or in a de facto relationship outside their marriage.
One such case was Jonah & White 2012. In that case Ms Jonah alleged that she was in a de facto relationship with Mr White over a thirteen-year period. Mr White was married and lived with his wife and children throughout. Ms Jonah and Mr White kept their relationship a secret. They sometimes spent two to three days together every second or third week and travelled overseas together for two to two-and-a-half weeks, but they never shared a permanent residence.
The Trial Judge (and the Full-Court, on appeal) held that Ms Jonah and Mr White spending such limited time together and otherwise maintaining separate residences didn’t exclude the possibility that they were living together on a genuine domestic basis.
However, the clandestine nature of the relationship, including Ms Jonah never meeting Mr White’s children, each of them rarely meeting each other’s friends or otherwise being involved in each other’s lives, ultimately meant that they were not in a de facto relationship.
How does the Court determine whether two people had a relationship as a couple living together on a genuine domestic basis?
The Family Law Act 1975 requires the Court to look at a number of factors, including:
- how long they were in a relationship
- whether they shared a home, or each shared their home with the other and if so, for how long
- whether they had a sexual relationship
- whether one person was financially dependent on or received financial support from the other
- whether they owned, used or acquired property jointly
- the degree of mutual commitment to a shared life
- whether they registered their relationship as de facto with the Registry in their State or Territory
- whether they cared for or supported children together – children born to both of them and to just one person with another partner
- the reputation and public aspects of the relationship.
In many situations, some of these may be present whilst others are not and it is a balancing act to determine whether or not a couple are in fact in a de facto relationship, as occurred with Ms Jonah and Mr White in the example above.
Whether or not you and your partner are in a de facto relationship will determine whether a property settlement is required in the event of a separation, and the financial impact of this may be significant. If the couple are not in agreement as to whether a de facto relationship existed, the threshold question may need to be determined by a Court before the parties are in a position to negotiate regarding any settlement (or be satisfied a settlement is not required).
Our family law team can assist you to understand whether your relationship circumstances are likely to be considered to be a de facto relationship and what the necessary next steps are, whether you are contemplating entering a de facto relationship or have recently separated. Please contact us on 03 9629 7411 or via a form on our Family Law website page to make an initial appointment.
