What is a de facto relationship?

Couple D

Many clients understand that entering into a de facto relationship can confer certain rights and responsibilities akin to being married.
However it is often hard to pinpoint the exact point in time at which a girlfriend or boyfriend becomes a de facto partner for family law purposes.

The family law act defines a de facto relationship as:

A relationship between two people who:

  • Have a relationship as a genuine couple
  • Are not related
  • Are living together on a genuine domestic basis
  • Are not legally married to each other

It’s important to note that:
o You may be married to another person and have a de facto partner at the same time
o Same sex de facto couples are assessed under the same criteria

In determining whether the persons have relationship as a couple the court will ask the following questions:

  1. The duration of the relationship?
  2. Did the parties live together, if so how often and since when?
  3. Was there a sexual relationship?
  4. Were the parties financially independent?
  5. Were the parties mutually committed to a shared life?
  6. Did the parties jointly care and support any children?

The court can look at various sources of evidence to answer these questions such as:

  • Letters, text messages and emails between the parties
  • Statements from friends and family about the existence of the relationship
  • Information and photos on Facebook and other social media platforms
  • Bank account statements
  • Other government documents such as Centrelink forms and tax returns listing a person as a spouse

Family Law Property Proceedings

For the purposes of Family Law Property proceedings, once the court has been satisfied that you were in a genuine de facto relationship with your former partner which has broken down, you need to meet one of the following four criteria:

  1. That the period for the de facto relationship is at least 2 years
  2. That there is a child in the de facto relationship
  3. That the relationship is or was registered under a prescribed law of a State or Territory
  4. That significant contributions were being made by one party and the failure to issue an order would result in a serious injustice

What’s next?

Providing that there was a genuine de facto relationship and one of the above four criteria have been met, it is open to either party to initiate the process of seeking a family law property settlement. The courts will then follow the 4 steps to determine how the property is to be divided.

For de facto couples proceedings for property settlement need to be brought within 2 years from the date of separation.

For more information about how a family law property division is evaluated click here.

To speak with one of our family law specialists regarding your situation, simply fill in the form at the top right of the page or give us a call on 8525 2700.

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