What is a de facto relationship?

Article – PDF – What is a defacto relationship

In 2008, the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 was passed and substantially came into force on 1 March 2009. This Act had the effect of integrating de facto relationships into Federal Law and thus making de facto couples covered by the jurisdiction of the Family Court and Federal Circuit Court. This is true for all states and territories bar Western Australia, who has not referred the relevant powers to the Commonwealth and therefore still deal with de facto matters under state law.[1]

The Act made amendments to the Family Law Act 1975 (Cth) (“FLA”) that extend financial settlement to parties in de facto relationships, whether they are in a heterosexual or same sex relationship. De facto parties are now eligible to seek property adjustment and maintenance orders in the same capacity as married couples have been able to in the past.

A de facto relationship is now defined in section 4AA(1)  of the FLA as:

“A person is in a de facto relationship with another person If:

(a)  The persons are not legally married to each other; and

(b)  The persons are not related by family (see subsection (6)); and

(c)  Having regard to all circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.”

The circumstances referred to at s 4AA(1) subsection (c) above are outline in s 4AA(2) and include any or all of the following:

(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 a prescribed law of a State or Territory as a prescribed kind of relationship;

(h)  The care and support of children;

(i)    The reputation and public aspect of the relationship.”

All the above factors are relevant considerations, however it is not necessary to make a finding that one or more of the above factors existed to decide whether or not there was a de facto relationship. The court has a wide discretion when determining whether a de facto relationship exists or not. This is evidenced in the legislation where it states “the court is entitled to have regard to, and attach weight to, any matters that seem appropriate to the court in the circumstances of the case.”[2]

The legislation also specifically mentions that a de facto relationship can exist if the parties are a same sex or heterosexual couple and even if one of the parties to the relationship is married to someone else or is in a concurrent de facto relationship.[3]

The courts broad discretion has been exercised in many cases since the introduction of the new legislation. In Jonah & White [4] the parties were in a 17 years relationship that the women asserted was a de facto relationship but the man asserted it was an affair. The court determined that it was not a de facto relationship due to the secret nature of the relationship, the limitations of the relationship and the fact the parties were not identified to the public as having been in a relationship.

In Allenby & Kimble [5] the court took into account emails between the parties to help determine that the parties were in a de facto relationship. This was not the only factor however, the parties shared a bedroom and the man modified his property to allow the women to operate a business out of it that he derived no financial benefit from.

In Gissing & Sheffield [6] the applicant alleged that the parties were in a de factor relationship for 17 years that started out as a business relationship and then became a personal one. The respondent claimed that there was no de facto relationship and that it was merely a business relationship. The court found that a de facto relationship existed because the parties shared a common residence for significant periods of time, conducted joint bank accounts, shared income and payments of household expenses and the perception of their relationship to other persons. The court stated that on balance the evidence indicates the parties had merged their lives and for all practical purposes they were living on a genuine domestic basis.[7]

What happens after the court makes its determination?

After taking in all the circumstances contained in the legislation and relevant case law the court can make a declaration that a de facto relationship existed or didn’t exist.[8] This declaration has the effect of a judgment of the court.[9] However the court can only make such a declaration once it’s satisfied that the applicant or both parties were ordinarily resident in the participating jurisdiction when the proceedings were commenced.[10]

Once the court has determined that a de facto relationship exists it can only make a property adjustment or maintenance order in relation to a de facto relationship if it is satisfied of any of the following factors:[11]

(a)  “that the period, or the total periods, of the de facto relationship is at least 2 years; or

(b)  that there is a child of the de facto relationship; or

(c)  that

i.- the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a),(b) or (c); and

ii.-A failure to make the order or declaration would result in serious injustice to the applicant; or

(d) -That the relationship is or was registered under a prescribed law of a State or Territory.”

The court has a broad discretion to use any evidence relevant to the case at its disposal to find that a de facto relationship existed or did not exist. There is no black and white definition of what a de facto relationship is, as each case is different from the next.

Article written by Shaun Mill