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What is a De Facto Relationship?

A de facto relationship or civil partnership exists where two people are living together as a couple on a genuine domestic basis. Whether a de facto relationship exists in a given situation will be determined by considering all the circumstances.

What the court considers

To establish if two people are in a de facto relationship, the court will consider:

  • the duration of the parties’ relationship;
  • how long the parties have lived together, if at all;
  • if a sexual relationship exists between the parties;
  • the level of financial dependence/co-dependency of the parties;
  • if the parties own property together, or separately;
  • if the parties enjoy the use of one another’s property;
  • if the parties have a commitment to a shared life together, and the level of that commitment;
  • if the relationship is registered as a civil partnership;
  • if the parties have children together;
  • the care arrangements for any children of the relationship, or of either party to the relationship; and
  • the public perception of the parties’ relationship.

The court will carefully think about the collective effect of all of the above factors when it determines whether or not a de facto relationship existed. No single factor is determinative and the overall circumstances of the parties’ relationship will be considered.

Who can be in a de facto relationship?

A Civil Partnership can exist between two people of the same sex or two people of different sexes. A de facto relationship cannot exist between two people who are married to one another or two people who are closely related by blood(such as parent and child or siblings).

A person can be a party to two de facto relationships at the same time. A  person can also be married to one person and simultaneously in a de facto relationship with another person.

Did a de facto relationship exist?

Before the court can deal with a matter under the Family Law Act, it must be satisfied that a de facto relationship existed (if the parties were not married). Usually, establishing that a de facto relationship exists will be a formality because both parties consent to the court’s jurisdiction under the de facto provisions in the Family Law Act.

However in some cases, the issue of whether a de facto relationships existed will be in dispute and the court will have to make a determination. =

For the Family Law Act to apply to a de facto relationship, the court needs to satisfy itself of one of the following:

  • that the parties were a de facto relationship for at least two years; or
  • that the parties have a child together; or
  • that the applicant made substantial contributions to the relationship; or
  • that if the court failed to make the declaration, the applicant would suffer a serious injustice; or
  • the relationship was registered under a prescribed state or territory law, for example the relationship was registered as a Civil Partnership with the relevant authority.

The court may also be asked to make a declaration about the duration of a de facto relationship, when a de facto relationship is taken to have commenced and/or ended. The Family Law Act applies to de facto relationships that have ended on or after 1 March 2009.

When making an application under the de facto provisions of the Family Law Act, it is important to keep in mind that limitation periods and jurisdictional requirements exist.

If you require legal advice on civil partnerships or any other legal matter contact Armstrong Legal on 1300 038 223 or send us an email.

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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