The Family Law Act now provides essentially the same rights to de facto couples that married couples have in relation to division of property and spousal maintenance. So how do you know if you are at risk of a claim or have the right to bring a claim? The first question you need answered is what is a de facto relationship and am I in one?
What is a de facto relationship?
Under the Family Law Act a de facto relationship is defined as follows:
A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family; and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
This includes same sex couples.
Am in in a de facto relationship?
For most people, they would assume it would be obvious whether or not they are a couple as defined under this section. But that is not always the case. In some cases that have come before the Court, one party is disputing that they were in fact ever in such a relationship. The Court then needs to dig deeper to decide whether the relationship meets the criteria.
For example, in a 2014 case, it was found that a de facto relationship never existed between two parties who were living together. In that case, one party said they were in a genuine domestic relationship whereas the other party said it was a “situation of friends with benefits”. Ultimately, in that case, the Judge was not persuaded that the parties were a couple living together on a genuine domestic basis.
The circumstances the Court considers when determining whether they have a ‘relationship as a couple living together on a genuine domestic basis’ include any or all of the following:
- the duration of the relationship;
- the nature and extent of their common residence;
- whether a sexual relationship exists;
- the degree of financial dependence or interdependence, and any 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 under a prescribed law of a State or Territory as a prescribed kind of relationship;
- the care and support of children;
- the reputation and public aspects of the relationship.
De facto relationship checklist
Whether you are, or were, in a de facto relationship will depend on an assessment of all relevant circumstances of your individual circumstances. Every case is different, and some are more clear cut than others.
If you think you might be in a de facto relationship, some questions you might want to ask yourself are:
- Are/were you in a romantic relationship with your partner?
- Do/did the two of you live together?
- If you maintained 2 separate homes, did you spend substantial time at each other’s home?
- Do you have a child with your partner?
- Was your relationship registered? (eg under the Civil Unions Act 2012 ACT)
- Do/did you financially support your partner, or do/did they financially support you?
- Are/were you listed as “in a relationship” on Facebook or other social media?
- Are you engaged?
If your answers (or your partner’s answers) to the above is yes to one or more, then you may be in a de facto relationship. You should seek advice on your individual circumstances from a family lawyer.
If you are (or were) in a de facto relationship, the next question is: are you at risk of, or entitled to, a claim for property settlement or spousal maintenance?
Stay tuned for an upcoming post where we discuss De facto Relationships and Property Rights.
Kasey Fox is a Family Lawyer and Director at Farrar Gesini Dunn.