De Facto Relationships
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 4AA of the Family Law Act 1975 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 4AA of the Act:
- 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 of the Family Law Act
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 under section 90SB of the Act:
- 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 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 Act are met.
What is not a de facto relationship?
De facto relationships cannot exist where:
- two people are married to one another; or
- two people are closely related (such as a parent and child, or siblings).
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 Federal Circuit and Family Court of Australia (FCFCA) for property adjustments and financial assistance.
Can I be in more than one?
The short answer to this question is yes. A person can have multiple de facto partners as long as they are living together and fulfil the relevant criteria.
What if I am married to someone else?
Again, the answer to this question is yes.
Section (5)(a) of 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 another relationship”.
How do I know if my partner is in a de facto relationship?
Under section 4AA of the Act, 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 relationship. How does that affect me?
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 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.
Also, in the event any, or all of the relationships end (or if you and your partner obtain a divorce) then it is possible that any of your 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 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 but 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 checklist of factors to prove that a couple are living in a de facto relationship. Matters that are considered include:
There are strict requirements that a person must satisfy before a Court can consider making an order for property settlement or spousal maintenance after they separates from their partner.
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.
For advice or representation in any legal matter, please contact Armstrong Legal.