De Facto Relationships in Family Law

Just because two people have been in a relationship for at least two years does not necessarily mean that they are in a de facto relationship for family law proceedings. Although the length of the relationship is one element that the Courts need to consider, it is not a sole determining factor.

De facto comes from the Latin phrase of fact. A de facto relationship describes parties who are not married, but are essentially recognised as being in a marriage that exists in fact. The Family Law Act 1975 applies to both de facto relationships and couples that are legally married (or de jure relationships, from the Latin phrase of law).

A relationship is not de facto if:

·      The parties are legally married to each other; or

·      The parties are closely related (for example are siblings or half-siblings, are descendants of a common parent, or through adoption).

However, being legally married does not prevent one party from having a de jure spouse and a de facto partner at the same time. For example, if you have separated from your spouse (but not yet divorced) and you have a new partner, both relationships may be recognised under the Family Law Act.

There is no one factor that determines whether parties are (or were) in a genuine de facto relationship. The Court is required by s.4AA of the Family Law Act 1975 a number of different circumstances into account, and will attach weight to any particular circumstance that it deems appropriate. Some of the circumstances that the Court will consider are:

·      The length of the relationship;

·      Whether the parties lived together;

·      If there was a sexual relationship;

·      Care and support of children;

·      To what extent the parties shared finances, or relied on each other for financial assistance;

·      If the parties were mutually committed to a shared life;

·      Whether there is any property owned in joint names;

·      Joint use and acquisition of property;

·      The reputation and public aspects of the relationship.[3]

In t Jonah & White [2011] FamCA 221 it was determined that a 17-year relationship was not a genuine de facto relationship. The applicant was a woman who applied for a declaration that she and the respondent had a de facto relationship. She argued that they had “spent time together in various places, had a sexual relationship, and expressed love and affection for each other”. From 1999 until 2010, the respondent (the man responding to the woman’s application) had sent the applicant regular payments of between $2,000 and $3,000 per month, and gave her an additional $24,000 to purchase a home. The respondent argued that his relationship with the applicant was merely an affair and that because he was married to another woman it could not be determined that he is also in a de facto relationship with the applicant. Although the Court rejected the respondent’s arguments that his relationships need to be exclusive, the Court found that there was no de facto relationship with the applicant. the court put significant weight upon the fact that there were very few public aspects of their relationship, and the parties were not living together on a genuine domestic basis. On appeal, this decision was upheld; The Full Court agreed that “the proper focus… was the nature and quality of the asserted relationship rather than a quantification of time spent together” (Jonah & White [2012] FamCAFC 200 per May, Strickland and Ainslie-Wallace JJ at [61]).

Along with determining that the parties were in a genuine de facto relationship by considering the factors discussed above, there must also be at least one of the following four criteria:

·      The relationship was at least 2 years in duration;

·      There is a child of the relationship;

·      The relationship was registered; or

·      One or both parties made significant contributions and would face serious injustice if no orders were made.

Contributions include:

·      Direct and indirect financial contributions to a party or child of the relationship;

·      Purchasing, maintaining or improving property of the parties;

·      Contributions to the care and wellbeing of the parties or children of the relationship; or

·      Homemaking contributions.

Other requirements that must be met before the Court will make orders for property settlement include:

·      Geographical jurisdiction (the parties relationship has relevant ties to Australian States or Territories); and

·      That the relationship broke down after 1 March 2009 (however, parties to a de facto relationship need to make an application for property orders within 2 years of separation, or permission from the Court to file late).

If you have separated from your de facto partner, or are unsure whether your relationship was a genuine de facto relationship for family law purposes, please contact us to make an appointment.