It is important to know the factors that define a relationship as de facto. Is your husband’s girlfriend just his mistress or his de facto? Are you in a de facto relationship with the person you are romantically involved with? If you broke up would you need to give him or her some of your assets? This could have dire consequences for you and your family. And could be relevant in legal proceedings brought against you, your spouse or your estate if you pass away.
You should seek legal advice to obtain clarity on your relationship, and to ascertain whether a Binding Financial Agreement is appropriate for you to protect your assets should you die or terminate that relationship. Alternatively, you could obtain advice from an Estate Planner or Asset Protection Consultant, who may be able to offer you some advice. However, a court may look behind such measures in family law proceedings to decide a fair outcome.
The information in this article is of a general nature, without reference to your particular circumstances, and is not to be taken as legal advice. The law is evolving, and amendments to legislation or its interpretation by the courts occur over time.
A de facto relationship is one between two persons who are not legally married and are not related (by family) and ‘having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.’ The Family Law Act outlines the relevant circumstances that will be considered by the court in deciding if the parties were living together on a genuine domestic basis, namely:
“(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support between them;
(e) the ownership, use, and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under the prescribed law of a State or Territory as a prescribed kind or relationship;
(h) the care and support of children;
(i) the reputation and public aspect of the relationship.”
The courts may also look at other factors such as who performs the household duties, and who has raised the children. The Court does not give equal weight to each of these factors, nor does each factor need to be satisfied. For example, a relationship may not be sexual but could still be classified as de facto. Also, State law varies as to the factors taken into consideration. Therefore, you should obtain legal advice specific to your state and situation.
The Court, when deciding if a de facto relationship exists, uses the above mentioned factors to ascertain whether it indicates that the couple have shown a commitment to a mutual shared life. There must be a merger of the two lives into life as a couple.
Let’s look at these factors in turn:
The duration of the relationship
Usually, you must have lived together for at least two years, though not always. However, if you have children together, a shorter period of cohabitation may suffice. If the relationship has been for less than 2 years, but it would be patently unfair if the Court did not intervene, the Court will likely declare the existence of a de facto relationship.
The longer the relationship, the greater the chance that it would be deemed de facto, though not necessarily. All these factors need to be considered.
The nature and extent of their common residence
You don’t actually need to be living in the same house, all the time, to satisfy this enquiry. You could each have separate homes, and spend time between them, or regularly in one, and still be considered de facto. Though it is certainly clearer if you are living under the same roof.
Whether a sexual relationship exists
The existence of a sexual relationship is a strong indicator that you are living together as a couple. However, the absence of sexual relations is not fatal to the definition of a de facto relationship, particularly if the couple have all the outward appearances of a couple living for the mutual benefit of a joint life together.
The degree of financial dependence or interdependence, and any arrangements for financial support between them
Again this is an important factor, but it’s absence does not defeat a claim that a relationship is de facto in nature. Often however, there has been some financial mingling and therefore it would be unfair if an adjustment in property was not made. If one party has made substantial contributions to the mutual benefit of both parties and the assets held by the other, it would be an injustice not to make an adjustment in favour of the person who made this substantial contribution.
The ownership, use, and acquisition of their property
When two people, in a relationship act in a partnership to acquire assets for their mutual benefit, this strongly indicates the existence of a de facto relationship, particularly when many of the other factors are satisfied as well.
Care should be taken to distinguish between a business partnership and a de facto relationship.
The degree of mutual commitment to a shared life
This is one of the abstract concepts that the Court can rely on, that the couple just seem to be committed to a shared life. This tends not to stand alone, but to be supported by the other factors.
Whether the relationship is or was registered under the prescribed law of a State or Territory as a prescribed kind or relationship
While registering the relationship as a de facto relationship is strongly indicative that both parties view it as de facto, however the mere fact of registration does not necessarily make it so. This is just one of the factors and not a deciding factor.
The care and support of children
This is an important factor, particularly when coupled with a sexual relationship and financial dependence, particularly where the couple have more than one child together.
The reputation and public aspect of the relationship.
Clandestine relationships, even ones spanning more than a decade, can fail to be considered de facto, if the couple fail to meet this requirement.
Non-sexual relationships can be seen as de facto if there is a strong public perception of the couple being such as to embrace ‘coupledom’ with a strong mutual aspect of a joint life together.
So how do we know?
While it is evident that there are no hard and fast rules to say whether a relationship is de facto or not. It is decided on the balance of probabilities. From the facts, what is the most likely nature of the relationship? Do the balance of the facts favour a de facto relationship, or simply a romantic attachment with no legal consequences?
In the legal context, it is for the one who wants the relationship declared as de facto who must prove it on the balance of probabilities, not for the other person to disprove that you were involved in such a relationship. Sometimes it just comes down to the issue of credibility, making fanciful claims will only discredit you and your version of events.
The bottom line is that there must be sufficient evidence to prove a merger of lives, being a mutual commitment to a shared life. The more deeply intertwined your lives, the more likely that you are in a de facto relationship.
 S4AA(1) of the Family Law Act 1975 (Cth)
 S4AA(2) of the Family Law Act 1975 (Cth)
 D v McA (1986) DFC
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