This article was written by Michelle Makela - Legal Practice Director

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...

Multiple De Facto Relationships


What Is Marriage?

After much public debate and lobbying, the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) was passed by the Commonwealth government. Marriage is presently defined in Australia as:

  • the union of two people to the exclusion of all others voluntarily entered into for life.

There are limitations on who can be married in Australia, and what marriages are recognised in Australia. Two people may not marry if:

  • either of them is under the age of 18 (although there are some very exceptional circumstances to the marriageable age);
  • if one of the parties is married to somebody else;
  • the parties are siblings (including half-siblings).

For an Australian marriage to be valid, it cannot be between parties who are prohibited from marrying one another at the time of the marriage and it must be solemnised in accordance with the Marriage Act.

A marriage certificate is provided when a marriage is solemnised.

Some foreign marriages are recognised in Australia, provided that they comply with the definition of marriage pursuant to the Marriage Act and do not fall in the list of relationships that are not capable of marriage in Australia.

Despite separation, a married couple remains married until a divorce order is made and taken effect. You cannot be married to two people at the same time, as this is the federal offence of bigamy and the second marriage is considered void.

What Is A De Facto Relationship?

De facto relationships are defined by the Family Law Act as two people living together as a couple on a genuine domestic basis. De facto relationships are identified by the circumstances of the parties, and those circumstances will differ in each case.

A de facto relationship can exist between two people of the same sex, or two people of the opposite sex. A de facto relationship cannot exist between two people who are married to one another or two people whom are connected by family (such as parent and child and siblings).

When the court is required to determining whether or not a de facto relationship exists between two people, they will consider:

  • how long the parties have been in a relationship;
  • if the parties have lived together, and if, for how long;
  • if the parties shares a sexual relationship;
  • if the parties were financially independent from one another or there was a level of financial dependence/co-dependency;
  • how the parties owned property, either separately or jointly, and how that property was used and enjoyed by the parties;
  • how committed the parties were to a shares life together;
  • if the relationship was registered as a Civil Partnership with the Queensland Registry of Births Deaths and Marriages (or the equivalent state or territory registration);
  • whether the parties have children together, or if one party has children, whether the children were treated as children of the relationship; and
  • how the relationship is perceived by the parties’ friends, family and the general public.

No one factor is determinative and the overall circumstances of the relationship will be considered when the Court is tasked with making a decision about the existence of a de facto relationship.

Can You Be Married And In A De Facto Relationship At The Same Time?

The Family Law Act expressly sets out that a person can be marriage to one person and simultaneously in a de facto relationship with another.

Whilst establishing that two people are married is determined by a marriage certificate, establishing a de facto relationship existed may prove more difficult, especially if the married spouse is unaware of the existence of the purposed de facto spouse.

If the de facto relationship is not conceded and the court may be required to determine whether or not there existed a de facto relationship, whilst one party is married, the above indicators of a de facto relationship will be considered. Issues such as a common residence, use and acquisition of property and the public aspects of the relationship may prove as barriers to a finding that the de facto relationship exists

If you would like legal advice about de facto relationships or any other legal matter contact Armstrong Legal on 1300 038 223 or send us an email.

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?

WHY CHOOSE ARMSTRONG LEGAL?

Armstrong Legal
Social Rating
4.5
Based on 271 reviews
×
Legal Hotline.
Open 7am - Midnight, 7 Days
Call 1300 038 223