Surprise! You could be in a De Facto Relationship! Part 1

Trying to define a de facto relationship can be a pretty difficult task. A relationship can come in all sorts of shapes and sizes and all sorts of combinations, depending on the individual preferences of the people involved. Today’s relationships can vary widely – from couples who spend time together on a ‘no strings attached’ basis, to couples who live together and have combined all aspects of their domestic life, with numerous variations in between. For example, a de facto relationship could look like that of Brad Pitt and Angelina Jolie, who have children together, have joint finances and openly express the depth of their commitment to each other. Other ‘couples’ might look more like Hugh Hefner and his Playmate girlfriends, and don’t seem to fit into traditional relationship roles and ideas about monogamy.

However whilst all this diversity and flexibility might seem fantastic for the couples personally (and for the gossip magazines!), it presents a pretty big problem from a legal perspective. At what point does your girlfriend or boyfriend become your de facto partner? When do you need to start worrying about any family law ramifications to your relationship?

Unfortunately there is no clear signal that marks when a couple become de facto and fall within the ambit of the legislation. It’s in stark contrast to married couples, where the marriage ceremony clearly indicates to both the couple and the rest of the world that the couple are in a committed relationship that falls under the jurisdiction of the Family Court.

Contrary to what some people would say, you cannot assume that the only time you need to worry about any family law issues is when you and your partner share a residence together on full time basis for at least two years. You could be in a de facto relationship even if you don’t share a home together all the time and even if you have not lived together for two years. Nor does it matter if you are married or in another de facto relationship with someone else. The legislation specifically envisages this particular situation and you can still be subject to a family law claim even if you are married or in multiple de facto relationships.

One way to get an idea would be to try asking yourself some basic questions such as:

Do you and your partner share a residence at all, even on a part time basis?
Do you provide financial support to your partner or vice versa?
Do you and your partner have any joint bank accounts or loans or combine your money in any way?
Do you and your partner have children together?

If you answered yes to any of these questions then you could be in a de facto relationship and it is important you seek further legal advice.

Consider the case of Bill and his girlfriend Laura. They’ve been dating each other for about 18 months and are madly in love. Bill is in the navy and a few months ago he accepted a posting overseas. Bill and Laura decided that it would be simpler if he rented out his house and just stayed with her when he was on leave. It would, after all, only be for a few weeks of each year, while the rest of his time would be spent at sea. Bill and Laura also opened a joint bank account so that Laura could deal with some of his financial issues whilst he was on deployment.

The idea that they might be entering a de facto situation never even crossed Bill and Laura’s minds. In fact, when Laura realised that this might be an issue, she was quite concerned. She has a well paid job high up in the government and has significant assets of her own. Although she loves Bill and feels that their arrangement works for them, she is anxious to protect the assets that she worked so hard to build up.

While some couples are fully aware of the legal ramifications of their relationship, others, like Laura and Bill, wrongly assume that they are not and get a nasty surprise when the relationship breaks down. We will discuss what Bill and Laura could do about their situation next month, so please stay tuned!

For Out-of-Court Solutions contact Farrar Gesini Dunn.