A de facto relationship is defined in the Family Law Act 1975 Act (Cth) as being a relationship between two people of the opposite or same sex who live together on a genuine domestic basis. Section 4AA of the Act provides defining qualities to a de facto relationship that include:
- not legally being married to each other;
- not related by family; and
- regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Interestingly, a de facto relationship can still exist when one party is still married to another person.
When a party to a de facto relationship is trying to negotiate their settlement, is not straightforward as there is a degree of complexity in deciding whether or not a de facto relationship exists between two people. If a person denies the existence of a de facto relationship, a hold is put on the financial settlement proceedings until the court can determine whether or not there was in fact a de facto relationship. If the court decides that a true de facto relationship existed, then the matter can proceed. If the court decides that, in contemplation of the particular circumstances, a de facto relationship did not exist within the meaning of the Act, then the case is dismissed, and a property settlement cannot occur.
However, to simplify this the Court applies the following criteria to evaluate the de facto status:
- the duration of the relationship (i.e. whether the parties have lived together for a period of 2 years or longer);
- the nature and extent of their common residence;
- whether a sexual relationship exists;
- the care and support of children;
- the degree of financial dependence between parties;
- the ownership, use and acquisition of their property;
- the degree of mutual commitment to a shared life;
- the reputation and public aspects of the relationship; and
- whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship.
While the list above is specific in nature, the court is not required to consider all of these issues in determining whether or not two people are in a de facto relationship. Essentially, this issue turns on the type of relationship and how the parties arranged their affairs together.
It is important to note that for de facto couples, there exists a limitation period for making a claim to the court for a property settlement. Any application to the court regarding the breakdown of your relationship and the dispute as to the adjustment of your relationship assets, liabilities and/or financial resources must be made within two years of the date of separation. However, if a party to the relationship decides to make a claim after the two-year period, they must first obtain the Court’s permission make that application. The court will consider this application with regard to any hardship experienced by you or the other party if the application were not to proceed, together with any explanation as to the delay. In these circumstances, it is important to seek advice from an experienced solicitor in order to understand your entitlements in a particular situation.
This limitation period does not apply to de facto couples who are approaching the court for relief as to the disputed parenting arrangements for their children.
Unlike a marriage certificate for a married couple, de facto couples often face issues when providing evidence that a de facto relationship exists. If one party disputes the relationship, it can be difficult to prove and apply key factors. If a dispute arises about the existence of your de facto relationship, seeking professional legal advice is highly recommended from the outset. As a result the Courts can create a declaration that identifies the existence of a de facto relationship.