What is a de facto relationship?
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?
Under the Family Law Act, a de facto relationship can be found to exist when a couple has a relationship and lives together on a “genuine domestic basis”. A couple who are same sex or opposite sex are included in the definition of a de facto relationship. However, a couple who are married, or those who are related by family cannot be considered to be in a de facto relationship with each other.
Defining who is in a de facto relationship depends on the circumstances of each couple. Usually, for a person to be classed as being in a de facto relationship under the Family Law Act, they have to have been living together as a couple, on a “genuine domestic basis” for at least two years without separation. However, there are exceptions to this rule.
The definition of de facto relationship depends on the particular circumstances of a couple. The law has formulated a set of factors to consider when determining whether a couple are (or were) in a de facto relationship for the purpose of applying for a property settlement under the Family Law Act. Some of those factors include:
- Whether the couple are married;
- How long the couple have been together in their relationship;
- Whether they have a common residence;
- Whether the relationship was sexual in nature;
- Financial dependency
- The degree of mutual commitment to a shared life;
- Whether the relationship is registered in an Australian state or territory;
- Property ownership and use;
- Care and support of children;
- The public aspects of the relationships, such as reputation.
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 situation. Every case is different, and some are clearer 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? (e.g. 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 are 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?
What are rights to property in a de facto relationship?
Under the Family Law Act:
A court may make an order regarding property or maintenance, in relation to De facto Relationships only if the court is satisfied:
- that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
- that there is a child of the de facto relationship; or
- (i) the party to the de facto relationship who applies for the order or declaration made substantial contributions and
- (ii) failure to make the order or declaration would result in serious injustice to the applicant; or
- that the relationship is or was registered under a prescribed law of a State or Territory.
2 years and/or a child
The most commonly used criteria to qualify to bring a property claim, is if the de facto relationship has been for a total of 2 years or more and/or if the parties have a child. Likewise, if your relationship was registered this can be grounds to apply. However this is far less common.
If your circumstances fall into any of these categories, then you may be at risk of, or entitled to apply to the Court for a division of property and/or spousal maintenance.
What if you don’t meet the 2 year rule?
But what if you don’t have children, and have been together for less than 2 years? There still might be a possible claim if substantial contributions can be shown and if it can also be shown that not making an Order would result in serious injustice.
What circumstances does the Court consider when determining de facto relationships?
For most people, they would assume it would be obvious whether 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.
What can you do to protect yourself in a de facto relationship?
If you are worried you might be at risk of a claim in the future, one way to protect yourself is with a Binding Financial Agreement or prenup. These can be entered into either before you are in a de facto relationship or during a de facto relationship. You can read more about prenups in our blog post Are Prenups Binding in Australia? or contact us to make an appointment for advice regarding your individual circumstances.
Registering a de facto relationship?
Most states and territories allow you to register a de facto relationship through the State’s registry of Births, Deaths and Marriages. This provides you with a certificate which can be used as proof of how long you have been together and used as proof of the de facto relationship.
A registered relationship or civil union may also create rights for property division, even though you may not have lived together for two years. You should seek advice from a family lawyer before registering your relationship.
Breakdown of a de facto relationship.
Where there is dispute regarding the division of property or children, upon breakdown of a de facto relationship, there are three ways to sort out how to divide property:
- By agreement without court involvement
- Through an agreement formalised by the court through an application for Consent Orders; or
- By applying to the courts for orders.
What am I entitled to in a defacto relationship?
Courts can make an order for the division of any property that you own together or separately. They make also order a split of any superannuation, or that one party pay spousal maintenance.
The net asset pool will include anything acquired before, during, or after separation. It does not matter whether the property was owned jointly or individually. When determining a property settlement, the court evaluates the types of contributions – financial and non-financial – made by either person, as well as their future needs.
Rights to court orders?
Property and custody issues for separating de facto couples fall under federal law everywhere except WA.
In Western Australia, if you have been in a de facto relationship, you will need to apply to the Family Court of Western Australia to resolve issues relating to children or property.
In all other jurisdictions, you can apply to the Federal Circuit and Family Court of Australia. This means your family law matters will be determined in largely the same manner as for a married couple.
You must apply for financial orders within two years of separation from your de facto partner. Otherwise, you will need to seek permission from the court to apply out of time.
Death of a de facto partner
If you are considered to be in a de facto relationship and your partner dies, then you may have entitlements, such as
- A share of an estate where no Will exists;
- The Right to challenge the Will if not adequately provided for;
- Receive compensation entitlements under workers compensation law if your partner dies during the course of employment; and
- Claim social security entitlements.
What can I do in domestic violence situations?
Farrar Gesini Dunn specialises in providing assistance to people involved in domestic and family violence. Whether you are involved in proceedings or if you are seeking advice about your options, it is our job to empower you by helping you to assert your rights.
If either you or children are being subjected to family violence you should contact our office today to speak with a family violence lawyer to discuss your legal rights and options.
More information can be found on our family violence page.