De Facto Relationship
De facto relationships are similar to marriages but without the marriage certificate. They are defined as two people having a relationship as a couple and living together on a genuine domestic basis. Like a marriage in Australia, a de facto relationship can exist between two people of the same sex, or two people of different sexes. Unlike a marriage that is easily identified by a certificate usually following a ceremony in the presence of family and friends, a de facto relationship is circumstantial and differs from one relationship to the next.
What is a de facto relationship?
Section 44A of the Family Law Act 1975 (Cth) provides that two parties (irrespective of gender) are in a de facto relationship if they:
- Are not legally married;
- Are not related by family; and
- Are living together as a couple on a genuine domestic basis.
In assessing whether parties’ are in a de facto relationship and are in fact living together on a genuine domestic basis the Court must take into consideration the following factors, which are set out in Section 44A of the Family Law Act 1975 (Cth):
- The duration of the parties’ relationship;
- The nature and extent of the parties’ common residence;
- whether a sexual relationship exists between the parties;
- The degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;
- The ownership, use and acquisition of the parties property;
- The degree of the parties’ mutual commitment to a shared life;
- Whether the parties relationship is or was registered under a prescribed law of a State or Territory;
- The care and support of children to the parties’ relationship; and
- The reputation and public aspects of the relationship.
Section 90SB Family Law Act 1975
To satisfy the Court of the existence of the de facto relationship the party will need to firstly satisfy the definition of a de facto relationship, in addition to one of the following factors pursuant to Section 90SB of the Family Law Act 1975:
- The relationship extended for a total period of not less than two years; or
- There is a child of the de facto relationship; or
- The party made substantial contributions and a failure to make an Order for a property settlement would result in serious injustice to that party; or
- The relationship was registered under prescribed State or Territory Law (Parties to a de facto relationship in Victoria can register their relationship with Births, Deaths and Marriages pursuant to the Relationships Act 2008)
Parties may be in several de facto relationships or married to another person, provided that the criteria set out in Sections 44A and 90SB of the Family Law Act 1975 are met.
What is a de facto relationship?
De facto relationships cannot exist where:
- Two people are married to one another; or
- Two people are related by family (being a parent and child, decedent and child and siblings).
The circumstances usually taken into consideration when determining if two people are in a de facto relationship, include:
- The duration of the relationship (usually, a couple is required to live together for a period of not less than 2 years for the relationship to be considered de facto. However, that is not always the case);
- The nature and extent of their common residence;
- Whether a sexual relationship exits;
- The degree of financial dependence or independence, and arrangements for financial support, between them;
- The ownership, use and acquisition of their property;
- The degree of mutual commitment to a shared life;
- Whether the relationship is or was registered as a ‘Domestic Relationship’ with Births Deaths and Marriages Victoria (or in another State or Territory);
- The care and support of children; and
- The reputation and public aspects of the relationship.
As every relationship is unique, the circumstances that are given weight will vary from relationship to relationship and no one factor is determinative. Also, one person may be in two or more de facto relationships at the same time, or in a de facto relationship at the same time that they are married to another person.
Establishing the existence of a de facto relationship is the first step in seeking orders from the Family Court or the Federal Circuit Court for property adjustments and financial assistance.
Can I be in more than one?
The short answer to this question is yes.
In fact, your partner could have multiple de facto partners as long as they are living together and fulfil the relevant criteria.
What if we are married?
Again, the answer to this question is yes.
Section (5)(a) of the Family Law Act 1975 (Cth) (“the Act”) clearly states that “a de facto relationship can exist even if one of the persons is legally married to someone else or in a de facto relationship”.
How do I know if my partner is in a de facto relationship?
This question is more difficult and is answered by considering the question of “what is a de facto relationship?”
According to s 4AA of the Family Law Act 1975 (Cth), if two people are not legally married to each other and are not related by family and they have a relationship as a couple living together on a genuine domestic basis, then the chance is those two people are living in a de facto relationship.
There are many different elements to be considered to work out if two people “have a relationship as a couple”.
I think my partner is in another de facto relationship. How does that affect me?
According to the Act, a person in a de facto relationship is entitled to file an application for property adjustment orders similar to that of a person who is married. If you are aware, or believe that your partner is in a de facto relationship with another person, or you are married and have a de facto partner, it may have a direct impact on the property available for division by the Court and reduce the value of your entitlement to the property pool.
What can I do about it?
It might be that you are still married and are yet to formalise a divorce, or you are comfortable with your partner being in a relationship as a de facto with another person, you might also have a second partner that would qualify as a de facto. It is fair to say that relationships can sometimes be complicated.
Also, in the event any, or all of the de facto relationships end (or if you and your partner obtain a divorce) then it is possible that any of your de facto partners are eligible to bring a claim against you for spousal maintenance.
In order to ensure your legal and equitable interests are protected, it is worth visiting a lawyer to discuss your options. It might be that you and your second de facto partner enter into a financial agreement to protect your interests, and the interests of your spouse or de facto partners. Financial agreements are discussed in more detail here and are a useful tool to avoid the necessity of determining a property settlement by the courts and also an effective tool to deal with spousal maintenance. These agreements can be tricky and it is a legislative requirement that both parties have received legal advice and understand the effect of the agreement.
What if I want to marry my de facto partner and I am already married?
To re-marry, you need to have obtained a divorce. A divorce may only be obtained after you and your spouse have been separated for a period of at least 12 months. If you do not obtain a divorce from the Court but re-marry your de facto partner, then you are committing the criminal offence of bigamy and the marriage will not be valid.
Many people believe that a couple needs to live together for a set period of time before they can be considered to be living in a de facto relationship. There is no set time period for people to be living together before they can be considered to be living in a de facto relationship.
Two people are in de facto relationship the moment that they start living together on a genuine domestic basis. De facto relationships come in “all shapes and sizes”. There is no specific check list of factors to prove that a couple are living in a de facto relationship. Matters that are considered include:
- Are they living together?
- How long have they been living together?
- Do they have a sexual relationship?
- Do they share any joint bank accounts?
- Do they own any property together?
- Do they share weekly living costs like electricity or telephone bills?
- Do their family and friends know that they are living together as a couple?
- Do they have any children together?
A person can only ask a Court to make an order about financial matters after the breakdown of a relationship if that person was in a de facto relationship with another person. Financial matters include how to divide the assets of the couple or if one of them needs to pay money to the other to help them meet their week to week living expenses.
These requirements are:
- The couple were in a de facto relationship and that relationship has ended;
- The de facto relationship was for at least 2 years;
- If the de facto relationship was less than 2 years then:
- The person who wants an order has made a substantial contribution; and
- To not make an order would result in serious injustice to the person applying for an order;
- There is a child of the de facto relationship;
- The de facto relationship is registered under a prescribed law of a State or Territory;
- That the couple were living in Victoria, New South Wales, Queensland, Australian Capital Territory, Northern Territory, South Australia or Tasmania (“the participating States”) when they separated;
- One person of the de facto relationship was living in Victoria or another participating State when Court proceedings were commenced for an order;
- The couple lived at least a 1/3 of the de facto relationship in Victoria or any other participating State;
- The person who has commenced proceedings for an order has made a substantial contribution in relation to the de facto relationship.
WHERE TO NEXT?
Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?