Are You In A De Facto Relationship And Don’t Even Know It?

man and women shelf

One of the comments we often hear from clients in family law matters is, ‘What do you mean I’m in a de facto relationship? I thought you had to live together for two years?’ This is a really common misconception. Under the previous NSW legislation, the general rule was that you and your partner had to have been living together for two years before you could qualify as a de facto relationship (subject to very broad categories of exceptions). This definition was substantially brought into the Commonwealth legislation by way of amendments to the Family Law Act 1975 (Cth) that came into effect on 1 March 2009 but, importantly, there is no prescribed or threshold duration of the relationship.

Section 4AA of the Act is the relevant provision. A person will be legally defined as being in a de facto relationship with another person if they have a relationship as a couple living together on a genuine domestic basis (but not including persons who are married or related by family). The factors that will be taken into account when deciding whether you are living together on a genuine domestic basis include the following:

(a)   the duration of the relationship;

(b)   the nature and extent of your common residence. This includes things like how often you stay in the same residence and share household chores and duties;

(c)   whether you have a sexual relationship;

(d)   the degree of financial dependence or interdependence between you and your partner. This includes any arrangements for financial support;

(e)   the joint ownership, use or acquisition of property;

(f)   the degree of mutual commitment you and your partner express towards a shared life;

(g)   whether or not the relationship has been formally registered as a de facto relationship;

(h)   the extent to which you and your partner share or contribute towards the parenting of children. This includes children of the relationship as well as children of prior relationships; and

(i)   the reputation and public aspects of the relationship. This includes whether you and your partner present publically as living in the same way that a married couple would live and whether you have reported to family and friends that the relationship is of that nature.

This is not an exhaustive list. There may be other factors that are relevant. This is also not a checklist where a couple need to satisfy all factors, or even a majority of factors, to qualify as a de facto relationship. The court will make the decision based on all the circumstances by giving appropriate weight to the factors that it considers to be most relevant to the particular couple and there is no single characteristic that is more important than the others.

If your relationship is properly characterised as a de facto relationship under section 4AA of the Act, then the rights and obligations of you and your partner will be governed by the Act during the relationship and in the event that the relationship ends. This would include the ability to enter into what is commonly referred to as a prenuptial agreement.

An interesting example we’ve come across in practice is that of a man who lived locally and a woman who lived in another state. They spent every second weekend together, alternating between each of their residences, along with their children from previous relationships. They had a jointly owned investment property that was purchased and managed in accordance with a formal joint venture agreement that they entered into when they first started dating. After the relationship ended, there was a question about whether the Act would apply. The case was settled, so the court was never required to make a decision on the question, but the advice of the barristers acting for both parties was that it was certainly open to the court to find the existence of a de facto relationship under section 4AA.

The above is not intended as legal advice. You should obtain legal advice in relation to your own specific circumstances.

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