Posted on 23 Dec. 2015
What determines a de facto relationship?
By Slater and Gordon
De facto relationships, and what defines them, is a common question our family lawyers are asked, particularly about what happens if they end.
Under the Family Law Act a person is in a de facto relationship with another if the couple are in a relationship and living together on a genuine domestic basis yet are not legally married to each other or are not related by family.
In 2009, the Federal Government made changes to the Family Law Act that gave de facto couples - including same sex couples - almost the same rights and obligations as married couples.
How does the court determine a de facto relationship?
It is relatively straight forward to determine if people are not legally married and not related by family. Most disputes are about whether two people ‘have a relationship as a couple living together on a genuine domestic basis’. The Family Law Act provides a list of factors to be taken into account in making this determination:
- the duration of the relationship
- the nature and extent of common residence
- whether a sexual relationship exists
- the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties
- 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.
No one factor should be considered more important than any other. However, it would be expected that the more factors that can be proved would help to determine that there was a de facto relationship and, conversely, the more factors that can be disproved would help establish that there was not.
There is no minimum or maximum numbers of factors that need to be proved or disproved when trying to establish the existence or otherwise of a de facto relationship, just as there are no minimum or maximum amounts that can be attributed to any factor, such as a minimum number of nights per week that might indicate if a ‘common residence’ has been maintained.
The Family Law Act also recognises that a person who is married could be a party to de facto property proceedings and that a person can be in several de facto relationships.
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