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De Facto Facts

Family Law: 20 July 2023

Author: Phoebe Smillie, Senior Associate - Our People

I have been living with my partner for a few years. Am I an in a de facto relationship? What is a de facto relationship?

If you are not married, it can be difficult to know how your relationship is defined under the law and how this impacts a financial dispute in the event of a separation.

This article sets out the law with respect to de facto relationships and what the Court considers when determining whether a de facto relationship exists.

What is a de facto relationship ?

Section 4AA of the Family Law Act states a person is in a de facto relationship if, having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis. In addition, the couple must not be legally married to each other or related by family. This includes adults of any sex or gender identity.

In addition the above, section 90SB states that the period of the relationship must be at least two (2) years to be considered a de facto relationship.

The Family Law Act recognises a person could be in multiple de facto relationships, or that a person who is married could be a party to de facto property proceedings.

What does living together on a genuine domestic basis mean?

In determining this question, the Court will have regard to the following factors:

  1. The duration of the relationship;
  2. The nature and extent of their common residence (i.e. how you lived together and for how long);
  3. Whether a sexual relationship exists;
  4. The degree of financial dependence or interdependence;
  5. Arrangements for financial support, between them;
  6. The ownership, use and acquisition of their property;
  7. The degree of mutual commitment to a shared life;
  8. Whether the relationship is or was registered under a prescribed law of a State or Territory
  9. How you cared for and/or supported any children you may have;
  10. The reputation and public aspects of the relationship.

When considering the above, it is important to note the Court specifically states in the Family Law Act that no particular finding in relation to any of the above points is to be regarded as necessary in deciding whether the persons are in a de facto relationship. A Court determining whether a de facto relationship exists will have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the Court in the circumstances of the case. Simply put, this means just because one of the factors above exist, does not necessarily mean a de facto relationship will be found to exist; it is at the Court’s discretion.

Further to the above, even if a de facto relationship is found to exist, the Court must determine whether it is just and equitable for there to be a division of property.

By way of example, an interesting case which deals with de facto relationships is the matter of Chancellor & McCoy [2016] FamCAFC 256. This case involved a same sex couple who had been together for 27 years. Although it was found the couple were in a de facto relationship, they kept their financial affairs almost entirely separate. On this basis, the Court found it would not be just and equitable for a property settlement following their separation. The Court took the following into account when reaching its decision:

  1. There was no intermingling of their respective finances;
  2. The parties had no joint bank accounts;
  3. Each party acquired property in their own name;
  4. Each party remained responsible for their own debt;
  5. Each used their own wages as they chose without explanation or accountability to the other;
  6. There was a complete lack of joint financial decision making;
  7. There was an absence of sharing any information with each other as to their financial situation;
  8. Neither party made provision for the other in the event of their death;
  9. At the time of separation, the parties were unaware as to the assets acquired by the other during the relationship; and
  10. Although one party transferred $100 per fortnight to the other, given the overall size of the pool, it could not be viewed as financial intermingling; and
  11. Both parties had the capacity to accumulate more assets with their ability to work following separation.

If you would like advice as to whether you are in a de facto relationship or if you need assistance with the division of property in your family law matter, please contact a member of our Family Law team to arrange an initial conference. At Aitken Partners, we have an experienced team of family lawyers who will help you understand the process and assist you with any queries.

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